Report on the Education Bill (volume 2)

TOGETHER WITH MINUTES OF PROCEEDINGS, MINUTES OF EVIDENCE AND 

WRITTEN SUBMISSIONS RELATING TO THE REPORT

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

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

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

Membership and Powers

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

The Committee has power to:

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

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

The membership of the Committee is as follows:

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

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

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

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

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

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

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

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

Table of Contents

Volume 1

Executive Summary 1

Section 1 - Introduction 5

Section 2 - Consideration of the Bill 11

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

Appendix 1

Minutes of Proceedings 87

Volume 2

Appendix 2

Minutes of Evidence 179

Volume 3

Appendix 3

Written Submissions 759

Appendix 4

Other Correspondence and Written Evidence considered by the Committee 1019

Appendix 5

List of Witnesses 1361

Appendix 2

Minutes of Evidence

Table of Contents

Departmental Briefing on the Education Bill

10 December 2008

Departmental Briefing on the Structure of the Education and Skills Authority (ESA)

14 January 2009

Departmental Briefing on Sectoral Organisations; ESA as the Single Employing Authority and Review of Employment Opportunities for Teaching Staff

21 January 2009

Departmental Briefing on Designing Modern Education Services; and ESA Outline Business Case

28 January 2009

Departmental Briefing on Ownership of Controlled Schools’ Estate

4 February 2009

Departmental Briefing on Area Based Planning

11 February 2009

Departmental Briefing on legislation, secondary legislation powers and commencement provisions

18 February 2009

Departmental Briefing on provisions on Employment Schemes, Schemes of Management and Boards of Governors

25 February 2009

Departmental Briefing on Schedules and related Clauses

4 March 2009

Governing Bodies Association (GBA)

11 March 2009

Northern Ireland Voluntary Grammar Schools’ Bursars Association (NIVGSBA)

11 March 2009

Department of Education response to evidence from GBA and NIVGSBA

11 March 2009

Northern Ireland Commission for Catholic Education (NICCE)

18 March 2009

Council for Catholic Maintained Schools (CCMS)

18 March 2009

Ulster Teachers’ Union (UTU), Irish National Teachers Organisation (INTO), National Association of Schoolmasters Union of Women Teachers (NASUWT)

25 March 2009

Department of Education response to evidence from UTU, INTO and NASUWT

25 March 2009

Department of Education response to evidence from NICCE and CCMS

25 March 2009

North Eastern Education and Library Board (NEELB), South Eastern Education and Library Board (SEELB), Western Education and Library Board (WELB), Southern Education and Library Board (SELB)

1 April 2009

Department of Education response to evidence from the Education and Library Boards

1 April 2009

Transferor Representatives’ Council (TRC)

22 April 2009

Department of Education response to evidence from TRC

22 April 2009

General Teaching Council for Northern Ireland (GTCNI)

29 April 2009

Northern Ireland Public Service Alliance (NIPSA)

29 April 2009

Department of Education response to evidence from GTCNI and NIPSA

29 April 2009

Northern Ireland Council for Integrated Education (NICIE)

6 May 2009

Comhairle na Gaelscolaíochta (CnaG)

6 May 2009

Department of Education response to evidence from NICIE and CnaG

6 May 2009

Association for Quality Education (AQE)

13 May 2009

Association of Northern Ireland Education and Library Boards (ANIELB)

13 May 2009

Department of Education response to evidence from AQE and ANIELB

13 May 2009

Committee Stocktake on Education Bill

20 May 2009

Departmental briefing on Education Advisory Forum

20 May 2009

Clause by clause consideration of the Education Bill

27 May 2009

Departmental briefing on Area Based Planning Policy

3 June 2009

Clause by clause consideration of the Education Bill

10 June 2009

Clause by clause consideration of the Education Bill

17 June 2009

Clause by clause consideration of the Education Bill

26 June 2009

Clause by clause consideration of the Education Bill

1 July 2009

Clause by clause consideration of the Education Bill and draft Committee Report

9 September 2009

Clause by clause consideration of the Education Bill and draft Committee Report

10 September 2009

Clause by clause consideration of the Education Bill and draft Committee Report

16 September 2009

Clause by clause consideration of the Education Bill and draft Committee Report

23 September 2009

Consideration of the Education Bill and final draft Committee Report

30 September 2009

10 December 2008

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

Witnesses:

Mr Jeff Brown
Mr John McGrath
Mr Chris Stewart

 

Department of Education

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

46. Mr McGrath: Political uncertainty.

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

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

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

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

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

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

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

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

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

56. Mr K Robinson: Whose fault is this?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

72. Point 4 of your briefing paper states that:

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

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

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

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

76. The Chairperson: Thank you.

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

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

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

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

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

14 January 2009

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

Witnesses:

Mr John McGrath
Mr Chris Stewart
Mr Joe Reynolds

 

Department of Education

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

122. Mr D Bradley: Everyone knows that.

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

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

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

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

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

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

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

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

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

132. The Chairperson: Currently?

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

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

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

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

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

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

139. Mr K Robinson: We do take pride —

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

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

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

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

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

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

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

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

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

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

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

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

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

153. Mr K Robinson: The Department rewarded failure.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

169. Mr McCausland: Hear, hear.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

203. The Chairperson: Paragraph 17 states:

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

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

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

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

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

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

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

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

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

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

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

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

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

216. Paragraph 16 of your submission states:

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

217. What do you mean by:

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

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

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

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

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

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

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

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

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

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

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

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

229. Paragraph 17 mentions:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

263. Mr McCausland: Yes, for Michelle.

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

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

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

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

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

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

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

271. Mr McGrath: Which we are working on.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

289. Mr McGrath: But smaller.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

314. Mr McGrath: I understand exactly.

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

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

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

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

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

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

321. Mr McCausland: That is fine.

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

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

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

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

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

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

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

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

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

331. The Chairperson: Who would appoint the chairperson?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

367. The Chairperson: Thank you.

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

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

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

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

21 January 2009

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

Witnesses:

Mr John McGrath
Mr Chris Stewart
Mr Joe Reynolds

 

Department of Education

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

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

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

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

376. Mr McGrath: Yes.

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

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

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

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

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

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

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

384. Mr McCausland: Let us do that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

430. Mr Stewart: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

443. Mr Stewart: That is the case.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

479. Mr McCausland: Is it inequitable?

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

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

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

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

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

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

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

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

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

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

489. Mr McGrath: It is a different paradigm.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

540. Mr Stewart: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

559. Mr Stewart: Yes.

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

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

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

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

564. Mr Storey: Made in Britain?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

612. Mr Stewart: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

627. John made sweeping statements about grammar schools —

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

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

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

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

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

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

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

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

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

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

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

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

— And this is the important part:

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

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

640. Mr Stewart: There is no contradiction.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

670. Mr Stewart: Not at present.

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

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

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

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

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

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

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

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

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

680. The Chairperson: Yes, briefly.

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

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

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

684. Mr Stewart: You are quite right.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

723. Mr Stewart: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

747. The Chairperson: Yes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Committee divided: Ayes 2; Noes 7.

AYES

Mr O’Dowd, Mrs O’Neill.

NOES

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

Question accordingly negatived.

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

The Committee divided: Ayes 7; Noes 2.

AYES

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

NOES

Mr O’Dowd, Mrs O’Neill.

Question accordingly agreed to.

Resolved:

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

28 January 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

798. The Chairperson: How sad. I apologise.

799. Mr D Bradley: How local is local? How many local area teams will there be?

800. Mr Boyd: There is still discussion about that. From our perspective, the principle is that services should be delivered at the closest possible point to schools and pupils.

801. Even in our existing services we have some sub-regional teams. We want educational psychologists located and working with small clusters of schools so that they are immediately available. We foresee circumstances in which educational psychologists are based in local communities of high need. That does not mean that that local team will operate on its own: it might be a subgroup of a slightly bigger team, but it should be determined by need and the importance of providing immediate access to services to make a difference to children.

802. Mr D Bradley: That does not really answer my question.

803. How can you produce a credible business plan if you do not know how many local area teams there will be?

804. Mr Boyd: There are two aspects to that. First, how we group services for management purposes is different from how we plan to deliver them.

805. Mr D Bradley: Generally, management will be grouped, as far as possible, regionally. Is that what you are saying?

806. Mr Boyd: No. The strategy should be regional and should be followed consistently across the region.

807. We have some 150 educational psychologists in the service, and we must ensure that they are as close as they can be to the need of the community. Over the next few months, we will decide how to cluster those psychologists for management purposes, taking into account not just the management of the organisation, but the need to interface with communities. That is something that the Department will want to examine. I am sure that it will be the subject of further discussions.

808. Mr D Bradley: When will we know the extent of the local area teams?

809. Mr Boyd: We will work hard on that over the next few months. We will pass it to the Department, which will want to consider and discuss it with various parties.

810. Mr D Bradley: Surely, that is one of the most pressing matters for schools. Schools will ask whether the ESA is like an elephant somewhere in the distance or will it be near hand and accessible when schools need it?

811. Mr Boyd: The model is designed to ensure that services that need to be close to the school and the pupil will be accessible. We are absolutely committed to that.

812. Mr John McGrath (Department of Education): We touched on that several weeks ago when we discussed the new organisation’s structure. We made it clear, in line with what Gavin said, that the Minister’s view is that services should be available as locally as possible. The Department’s view is that the number of local area teams should be grouped, perhaps, in six areas; however the service — human resources, finance, educational welfare officers or educational psychologists — should be as close to the school as is managerially possible. We have rehearsed this issue before. It will depend on circumstances, but the general theme of our work is subsidiarity. As much as possible will be available locally, and if back-office services can be centralised, they will be.

813. The Chairperson: Can I tease that out a little? What consideration has been given by the implementation team and the Department to the pressures that schools are experiencing with regard to educational psychologists?

814. As Gavin said, there are some 150 educational psychologists in the system. However, demand and need are huge, with many people on waiting lists. Will those 150 educational psychologists merely be spread out and instructed to work with the schools to which they are closest?

815. In your workshops you are bound to have been told about the structures and the associated problems. What cognisance is being taken of the problems involved in developing the delivery of the system? We could end up with a far worse situation than the present one.

816. Mr Boyd: I will comment from the point of view of the implementation team, and John will give the Department’s perspective. Some months ago, I spent several hours talking to the east Belfast primary principals’ group; our conversation was dominated almost entirely by access to special support for children. Those principals asked me: what is the point of providing psychology services three years after a need has been identified? The child will have left the school and there is nothing more that the school can do.

817. The principals became quite emotional; they are doing their best for their kids, but the services are not available. From a planning perspective, my first question is whether we have the right number of educational psychologists. How do we know whether 150 is the right number? The answer is not available to me in the system.

818. Mr D Bradley: If they cannot deliver the service needed, surely that is a good indication that there are not enough educational psychologists.

819. Mr Boyd: That is one possibility. Another possibility, however, is that we have not organised services or allocated priorities correctly. Most of us around the table went through the education system at a time when there were very few educational psychologists. Some people in the system argue that we now ask someone to come in to help with issues that used to be dealt with by primary school teachers in class. That is the sort of issue that the Department is considering from a policy perspective.

820. We are setting out to check various issues. Is the number of educational psychologists right? Is the organisation of the service right, or do educational psychologists spend too much time writing reports and having meetings rather than dealing with children? That issue has had a huge impact on me personally, and it is something that we have to consider. If more educational psychologists were required, funding would have to come from savings made elsewhere in the system. I could talk about this for the rest of the morning, Chairperson, but you would not want me to do that. I will hand over to John to provide the Department’s perspective.

821. Mr McGrath: I will make the same points in reverse. There are two strands to the issue. The first is: how many educational psychologists are needed? Perhaps more are needed, but the resources need to be found, and that is a priority issue. The second strand is developing the best managerial and professional way of deploying skilled and specialised staff such as educational psychologists; Gavin has rehearsed that point.

822. There is a coincidence of two issues. Gavin’s job is to create an organisation that makes the best use of the available resources and, as far as possible, frees up resources from support services that can be directed to front-line services such as educational psychologists. Ultimately, it will be up to the Department and the Minister, through the budgetary process, to maximise the amount of resources going to education. Gavin cannot come up with an optimum level of staffing that exceeds the amount of resources that are available to him, but he will seek to come up with the most effective deployment of those resources.

823. Mr Lunn: You will deserve an award if you successfully convert 30 IT systems into one or two. It seems that every other Department or organisation that has attempted to make such a change has either experienced major teething problems or made a complete Horlicks of it. Will that be in the Hansard report? [Laughter.] Millions of pounds have been spent, but systems have not been in place.

824. The Child Support Agency comes to mind, but there are many others. In the Public Accounts Committee, we have heard about so many disasters. How confident are you that, from day one, your systems will be robust enough to do the job?

825. Mr Boyd: I thought that that was an IT term.

826. Let me make an observation, since I have had the opportunity to examine existing systems in some detail. I used to work for a private-sector company that invested heavily in IT systems to do the drudgery of everyday work, which I call the “heavy lifting". The organisation also invested heavily in IT because it allowed the company to operate at — what I considered — a reasonable level.

827. My observation is that, educational technologies aside, investment in ordinary IT services to support human resources and finance has simply not been adequate. As a result, we have found that people are working incredibly hard under very stressful conditions to do jobs that in many other organisations are done by technology.

828. There is a huge frustration that human-resources systems cannot provide sufficient details about staff — such as where they live — to plan for the future. Therefore, we simply must invest significantly in IT to develop a modern organisation. That will drive some of the savings. I am aware of the track record in public investment in the technology to which you referred, and I am also aware that Hansard is recording this session. There are ways in which those issues can be delivered on.

829. I am conscious of the fact that there are people in this room who know more about technology than I do, but it is not difficult, in the twenty-first century, to have a single payroll system. It is not difficult to have a human-resources record system. Those are the challenges that we must face.

830. Mr Lunn: As regards other organisations, the problem seems to have been that the specification was not set out properly at the start. No matter whose fault it is, it is the commissioning body, which you represent, that must pay for and mop up the extra costs, even though, in some cases, an outside agency provided the systems that spelt out the specifications. Are you totally confident about this system?

831. Mr Boyd: You identified the vital importance of being what we call “the intelligent customer". A company cannot subcontract to another company the job of telling the first company what it needs. A company must be able to define its needs and to hold the supplier to account if it fails to make payments.

832. Mr Lunn: If people do not get paid in a year’s time, we will talk again. I am glad that you are confident.

833. Mr Elliott: Thank you for your presentation. I know that the issue of educational psychologists was used by way of example only, but surely that is, or should be, part of an ongoing review by the Department. I am surprised that there may be such a discrepancy now.

834. You spoke about wanting to reduce duplication, and I do not think that anyone would disagree with that. My concern is that when issues such as this have arisen before they have been addressed the wrong way round — front-line services, which are desperately needed, have not been retained and improved. Front-line services such as teachers, teachers’ support services and transport have been reduced at a local level, whereas administration has been built up, despite there being no cost savings in it. Therefore I remain to be convinced on that matter.

835. Being from the west of the Province, when I hear that something is being centralised I assume that it will be based in Belfast, while the rest of us lose out. I am keen to hear your comments on that.

836. Mr Boyd: The goal has been set: a greater proportion of the budget must be allocated to the classroom and to those who support children and young people directly. I cannot tell the Department how to do its job, but I expect it to make clear what percentage has been allocated to the classroom this year, next year, and the year after — as crudely as that. I expect such measures to be put in place.

837. Part of that has already happened. You have heard this before, but the savings projected for the first three years of the ESA have already been built into the Department’s financial plans for the future. That money has already been taken out of administration and is planned for allocation to the front line. Missing the targets is not an option; we simply must meet them to balance the books.

838. I will deal with the point about psychologists quickly. Such issues should be kept under constant review. I do not know — and no one has been able to tell me — what the appropriate caseload is for a psychologist. I do not know whether 150 psychologists is enough, too many, or too few, and I have no way of measuring it. It is not an insurmountable challenge, because it is done elsewhere in the world. That is the sort of thing that we will have to deal with.

839. It has been made clear in papers that we have submitted to the Department, on our website and in a presentation to the Committee that the centralisation model that we have been working towards and which we have presented to the Department respects the footprint of existing jobs. In other words, there are jobs in the west, and we anticipate that under the new model there will continue to be jobs in the west; not the same jobs, but there will be jobs. The different functions, such as finance and human resources, will be centralised, but not all in the one place. Those, of course, are ultimately decisions for the Department, but that is the model that we have been developing.

840. Mr McGrath: The Minister’s view is that as many resources as possible should be reallocated from back office to front office — into the classroom; that should be the objective. Equally, it is clear that in this budgetary period the Department is facing 3% per annum cuts or efficiency savings. Judging by the tenor of the Finance Minister’s statement on the strategic stocktake, it is clear that the Department will face at least that level of cuts during the next budgetary period. We must therefore consider the support services as they quarry to achieve those savings so that we do not have to take money out of front-line services. That will be our direction. I suspect that the Department will be looking keenly at Gavin to identify how he can sweat savings out of back-office services through rationalisation and centralisation to allow us to invest in front-line services and, equally, not to disinvest in those services.

841. The education and skills authority implementation team has outlined its thinking on how it would centralise functions and where it would do so. The Minister will wish to look sensitively at the location of public-sector jobs, but I think that I can speak for her when I say that she is sensitive of the need to avoid being Belfast-centric. The education service is a local service insofar as schools are concerned. The administrative arrangements involving five local boards and the other bodies are not Belfast-centric, and it is the Minister’s ambition to make those less Belfast-centric, not more. That will be a ministerial judgement rather than an administrative judgement by ESAIT.

842. Mr D Bradley: We examined the strategic stocktake with John and his colleagues last week. The Department is bidding for £60 million in 2009-2010 and £140 million plus in the following year. Will those savings not be consumed by deficiencies in the Department’s budget and never see front-line services?

843. Mr McGrath: As I said last week, the Department drew attention to pressures in the strategic stocktake. That is important. Now that we know that resources are not available to meet those pressures, the Minister will have to make a judgement about which of those pressures can be met from the outset next year, which can be deferred until next year’s end-year monitoring rounds, and whether some will have to be accommodated at the expense of other areas. That is still in flux.

844. All the arrangements for the administration of the ESA are designed to provide a tighter ship that will manage what will be a very constrained resource position. We can control the supply of resources. In many cases, particularly in the past year, we have no levers on the demand of those resources in the shape of inflation and other pressures. The administrative arrangements will undoubtedly be very constrained over the next two or three years; that much is clear from the Minister of Finance and Personnel’s statement.

845. There will be efficiency savings in the future; perhaps many of the savings that we will be looking for, above and beyond those cited in the outline business case, will be what we will have to lever out in order to meet efficiency savings targets, as opposed to being channelled into front-line services. We may not have the luxury of huge further investments unless the Budget decrees that. Things will be very difficult in the time ahead; if we did not have the Education Bill or a change in administrative arrangements, things would be even tighter.

846. The Chairperson: We will return to that matter, but I want to move on. I do not want to be sidetracked on the Budget; we will try to stay on issues concerning the education and skills authority.

847. Mr McCausland: I wish to make a couple of points, followed by one or two questions. No one questions for a moment the need for modernisation and simplification as an argument for change. However, Mr Boyd over-egged the pudding when he talked about educational performance; I thought that the real cause of educational underachievement was selection. That was the reason given for going against selection; now the blame is being directed at educational organisation. That cannot be used as the argument for everything; it does not stack up. Mr Boyd should refine that argument if he is to have any credibility.

848. How many workshops have been held, what was the participants’ level of satisfaction, and how much information from those workshops is available? I have to admit that I only found the website recently, but having found it, I will pursue it relentlessly.

849. Mr Elliott: Were you responsible for all those hits? [Laughter.]

850. Mr McCausland: Unless someone was very sad like me, they would not have bothered; there is nothing much on it.

851. Mr Boyd: In the most recent series of engagements, we held 11 workshops, three of which were what we called quality-assurance workshops. The first three workshops involved the most senior managers in each of the organisations that were responsible for a cluster of services. We called them quality-assurance workshops because we trialled all our thoughts and our presentations in front of the most senior managers to see if we had missed something obvious. The other eight workshops dealt with the 20 broad service areas that we had identified; they are set out in the members’ information pack.

852. We gathered a huge amount of information; we could have filled a couple of lever-arch files with the feedback from the workshops. We decided not to bring that information to the Committee on this occasion, but we are happy to make it available.

853. Mr McCausland: What was the level of satisfaction?

854. Mr Boyd: Judging by the feedback, it was very high.

855. Dr M Browne: The feedback from the workshops about the model was very positive. We have since received e-mails from the various organisations; I have one here that emphasises how valuable the staff found the workshops. We have had feedback meetings at which the organisations told us that staff had responded positively to the engagement.

856. Mr McCausland: I spoke to someone who attended a workshop — someone in whose assessment I have confidence — and who has experience of one of the sectors. That person was surprised that the workshop did not present a more developed and well-thought out view of the way forward. I know that the aim of consultation is to obtain feedback.

857. Mr Boyd: There is always a tension, Nelson, between providing a fait accompli and encouraging people to express their thoughts.

858. Mr McCausland: I understand that. However, I am talking more about people’s assessment of the quality of what was presented to them. People are always reluctant to say anything nasty or difficult because, ultimately, the Department is their paymaster. I will leave that aside for a moment.

859. How will the procurement of services such as transport and services to schools — who cuts the grass and paints the school — be managed?

860. Mr Boyd: There is a great deal of detail in that question. Many services are made available by the boards to schools, which have the right to opt in or out of those services, and there is no plan to change those rights. In fact, one principle that underpins the ESA is the desire to increase the autonomy of schools and to increase the budget that they have to exercise that autonomy.

861. The intention is to set up a centralised contract-procurement unit for the general procurement of services. That will mean that high-level draw-down contracts and procurement contracts are organised centrally.

862. Mr McCausland: I am concerned that you do not end up with a system that discriminates against small businesses. Belfast City Council ran into that difficulty over minibus provision, and I have other examples.

863. Mr Boyd: Are you talking about the purchase of minibuses or the buying-in of transport?

864. Mr McCausland: I was using that as an example. Belfast City Council had difficulty with that; I was not referring to schools.

865. If contracts are awarded — and we are in uncharted waters — will there be an assurance that it will not be one big contract on the grounds of efficiency, which means that only big service providers can apply and that small, local businesses will lose out?

866. Mr Boyd: We touched on that issue before. I may appear to be arguing against myself, but I have seen enough examples of centralised procurement not working to be fully aware of the potential pitfalls. On the other hand, the only sensible way of managing large procurement contracts is centrally.

867. For example, there is no intention to have a centralised contract for paper clips or pencils. However, there is a clear requirement for a centralised negotiation with Translink on the £37 million per year that it is paid for school transport. In honesty, the full detail of that has not yet been worked out.

868. Mr McCausland: My final point relates to local delivery. I understand that what is delivered locally will be influenced by an advisory committee at local level. I am concerned about the decisions or recommendations of such a local committee being ignored. For instance, if it were planned to open a music school in the north-east, will the decision on whether it is placed in Aghadowey or Dervock be made by the ESA board — and most people will not have a clue where Dervock is in relation to Aghadowey — or will more authority be granted to the local advisory committee to make that decision? The same question might be posed in relation to Belfast — do you put the school in south Belfast or in north Belfast, for example?

869. Mr McGrath: We talked about that several weeks ago.

870. Mr McCausland: The problem is that I cannot get an answer.

871. Mr McGrath: We are talking about a reasonable organisation with clear policies that govern all its units and local teams that will have the flexibility to respond to local service needs and circumstances. Decisions and investments will be determined through the use of agreed delegations between the centre and the local teams.

872. If the case in point involves the provision of a music school, there may be issues concerning the scale of capital investment that is required for a particular location. That, and the running costs, may have to be considered by the central ESA board or, indeed, by the Department.

873. The decision about whether it should built be in Aghadowey may be taken locally, but the sign-off on the investment package must go —

874. Mr McCausland: Excuse me, but I must stop you there. You said that the final decision would be taken locally, but would that decision be taken by a local official or by a local advisory committee?

875. Mr McGrath: As we discussed several weeks ago, we have not worked out the detail of the role of local committees. They will be ESA committees, and their primary role will be advisory rather than to take executive decisions; otherwise we would create mini boards, and that would dilute the central body’s authority. Therefore we must give — and we are giving — further consideration to that matter.

876. Mr McCausland: I am concerned that decisions will be taken by people who know nothing about local geography.

877. Mr McGrath: Several regional organisations here — such as the Housing Executive and Invest NI — could act as models that balance locally sensitive units with centralised polices issued by a centralised board. It is not beyond the wit of man to square that circle. The matter for consideration is the scale of investment, which will be determined by how much responsibility is delegated to local teams, and the Committee will have an input into that decision.

878. Mr McCausland: Consider, for example, housing. Ultimately, housing decisions are made by local-level Housing Executive officials, under the authority of centralised officials. Every council has a housing-liaison committee, which tells people what to do and ignores what they say, and that brings us back to the observations about the DPP. It is important that we deal with questions about the structure for delivery; however, we must also consider the structure for decision making, and I am concerned about local input. One model might incorporate a central ESA, but it could also include localised decision making in that centralised framework. Decisions made in that way are often better. For example, a decision about where to locate a youth club would be better made locally.

879. Mr McGrath: I do not disagree; however, at the heart of such arrangements is the question of who takes such local decisions. No one would argue that decisions about the pattern of local service provision should be taken locally. However, if investments are involved, decisions may have to be referred up the line in order to consider investment priorities. The question is: who should take such decisions?

880. Mr McCausland: In the Housing Executive, district managers ask to do things, and their bosses overrule them. I cannot see any way round the problem of authorising local people — who are accountable and understand the community — to take decisions.

881. Mr McGrath: The regional organisation that we are discussing will be governed by the ESA, and the members appointed to it will be accountable to the Department and to the Minister. A model that advocated splintered authority would not be a good one, and, given the amount of funding that the ESA will have, I suspect that the Committee would not consider such a model to be good at any time. We must strike a balance. The committees will be ESA committees, not local ESA boards.

882. Mr McCausland: I accept that point entirely. However, you must find a model that allows decisions of that nature to be taken by local people who know the area well and who have some affinity with it rather than by an employee of the system. An appropriate model must be produced, because there is a lack of clarity about where we are going. Local influence in decision making — not just local delivery — is vital.

883. Mr Boyd: Considering that from a slightly different angle, the peripatetic music service is an interesting case in point, because different philosophies underpin various regional music services. In Belfast, there is an emphasis on excellence, resulting in organisations such as the City of Belfast Youth Orchestra and the City of Belfast Youth Concert Band. In Belfast, although inclusion is important and there is a great deal of activity, there is a clear focus on excellence. Other areas have their own approaches. Therefore, music provision demands a clear policy and a strategy that can be applied across the board.

884. After that, we will work out precisely how we will provide schools with support for the music service. Some of that service will, inevitably, be provided at the weekend or in the evening at a location that makes it available to all children, thereby not excluding some children because of where they live. I anticipate that some of the thinking behind that will refer to the area-planning process, which aims at considering the need for an educational service in an area and how it can be met.

885. We consider the provision of youth services in the same way: we examine the existing services and the demand for youth services in an area, and the community also has a major input into such decisions. Decisions on investment must, as always, be signed off by the Minister. I will take your points on board and will return to the Committee with more detail as the work progresses.

886. Mrs M Bradley: Gavin, you talked about transport and you also mentioned the change in the provision of school meals to a regional service. What consideration was given to that change? Given that the existing service is excellent and that we cannot afford to let the quality deteriorate, can school meals be improved? I would like to hear more of the thinking that led to that change.

887. Mr Boyd: First, Mary, there is not a single school meals service at present; there are at least five. Until recently, pupils paid a different amount of money for a school meal depending on where they live, and the content of the school meals was different, although that situation is being addressed. I make no comment about that, other than that there were differences and, therefore, not everyone was getting it right.

888. The proposition is to have a single regional school meals service and, therefore, a strategy: a single price; a single approach to the nutritional value of school meals; and decisions on what should and should not be provided. That strategic approach should be applied across the board. However, we recognise that most people who provide meals and who provide a wonderful service work in schools, and we will continue to support them in doing so. The supervision of their work will be organised locally.

889. As far as the school meals service is concerned, phase 1 simply involves the reorganisation of its management. We will streamline the management of the service, but we recognise that the service will continue to be delivered as it is at present for the time being. We should not lose sight of the fact that the total turnover of the service is £65 million, and, through one means or another, it is subsidised by approximately £35 million.

890. We have not considered, in any way, shape or form, efficiencies or better ways of delivering a service that is worth £65 million; our only consideration is its management. However, I would be very surprised if we do not learn lessons down the line. A great deal of money is tied up in the service, and thousands of great people provide those meals.

891. Mr B McCrea: I remain concerned that you changed the frame of reference and that you are now concentrating more on educational outcomes than on savings and efficiencies. My biggest concern is the number of redundancies that you estimate will result, as my guess is that they will account for most of the savings. How confident are you that you will achieve those savings through redundancies?

892. Mr Boyd: Lest there be any doubt, I am absolutely confident.

893. Mr B McCrea: You say that you are sure about that, but your outline business case states that somewhere between £24 million and £45 million can be saved through redundancies. Which of those figures is correct?

894. Mr Boyd: The cost depends on exactly who takes a voluntary severance package, because the model must be based on some assumptions. It is, therefore, based on an individual in his or her mid-50s with approximately 30 years’ service. The higher figure is based on someone whose removal from the system would be relatively expensive.

895. The lower figure can be based on a different set of assumptions. The final figure will not be known until we get to the date that each individual leaves the system and we become aware of their length of service and salary, among other things.

896. Mr B McCrea: Therefore you cannot tell me whether there will be savings of £25 million or £45 million in a £50 million cost budget.

897. Mr Boyd: That is not right.

898. Mr B McCrea: When I asked the question — [Interruption.]

899. The Chairperson: That relates to the business case, so we will return to that issue when we are discussing the business case. I want to keep to the question of modernisation.

900. Mr B McCrea: I appreciate that, Chairman. However, we are talking about letting people go. We have talked about our experiences in other organisations. As a member of the Policing Board, I know that there are not enough detectives in the PSNI, for instance. Part of the reason is that people who were doing important work were let go, and that problem might arise in this case.

901. I share Mr Lunn’s concern about IT; I have never known an IT system to come in on budget, and that is due to emergent requirements. I assume that you are going to tell me that savings will be made because all the people who are doing manual work will not be required as the computer can do it.

902. Mr Boyd: No; that is not what I am going to tell you.

903. Mr B McCrea: What do those people do?

904. Mr Boyd: That will take us to the outline business case.

905. The Chairperson: I want to stay on the issue of modernisation, but I am happy to let Mr Boyd answer those questions if he wishes.

906. Mr Boyd: I always find it helpful if members answer their questions as well as ask them. We are absolutely clear on the projected £20 million savings; that is in the outline business case. I have made it clear that as we worked through the last year we became more confident about the figures. The savings figure is clear.

907. We provided a range on the cost of achieving those savings. I cannot remember the figures that we provided for range in costs to achieving the savings, but it was between £22 million and £45 million. Savings are clear, but the costs depend on the individuals who leave at any given time.

908. The outline business case states that 463 positions are to go, and, in the paper that we provided for the outline business case, we set out the analysis of what posts are to go at different levels. Members will see that there is a disproportionate percentage of posts at higher levels, because the first phase is about reorganising management and the supervision of staff. It makes no big assumptions about losing large numbers of staff further down the organisation; it is about management.

909. We also recognise that a significant proportion of the target group is over 55; in fact, they are over 60. I am not making a point about ages, but there is a recognition of that fact. All the feedback that we receive states that a significant number of people will see this as an opportunity to leave the service and to move on to the next phase of their lives.

910. Mr B McCrea: I am glad that you found my attempt at giving you an answer helpful, because experience tells us that when we ask questions we do not always get an answer.

911. I do not think that you will hit your targets within your cost budgets. As the deputy permanent secretary said, we are entering a difficult financial period. The problem with such projects is that they start off with lofty ideals, which everyone thinks are great, but massive cost overruns appear. I want to ask whether we can be sure that the costs come in, but I am sure that we will talk about that in future.

912. The summary of the outline business case says:

“The group most affected by this change will be senior management … where 44% of posts will go."

913. However, data in the outline business case shows that senior management accounts for only £1·8 million of the annual savings, whereas middle-management professions account for £10 million and supervisory management comprises £6 million. Therefore, the totals are £16 million compared with £1·8 million. The real cuts will be to middle and supervisory management, who are the real workhorses, heroes and Trojans. If you cannot make your systems work better, I am concerned that no people will be left to run the organisation and chaos could ensue.

914. Mr Boyd: I accept Mr McCrea’s comments and genuine concerns. In percentage terms, senior management will receive the biggest hit. When we move from six finance departments to a single finance department and from 34 or 35 payrolls to two payrolls, the need for supervision and middle management will disappear.

915. Mr B McCrea: I do not want to labour the point, as the Chairperson has been indulging me, but you are trying to make changes in two to three years, yet determining how to amalgamate those systems properly is a heroic challenge. If you do not get it right, Mr McGrath will have problems with his budgets.

916. Mr McGrath: The outline business case is a robust piece of work. Basil mentioned implementation and change, and we discussed IT. Examples have shown that assumptions do not necessarily guarantee delivery. That is the test. In my experience, there is more investment in the front end of this case than during other organisational changes. The rigour of the outline business case will be applied, and elements of it operate on a worst-possible-cost scenario rather than one of best possible costs. Therefore, some of figures on top-end costs are based on the assumption that everyone who leaves will be in the most highly paid category, which would generate the required level of net savings. We can tackle that issue during discussion of the outline business case.

917. Mr Poots: Unlike my colleague Mr McCrea, I do not think that the proposals go far enough, and I support greater rationalisation. Children are, ultimately, most important to education, and it is teachers and classroom assistants who have the most contact with children. Teachers constantly tell me that the implementation of changes and new initiatives is absorbing more and more time and that they spend too much time writing reports for administrators to check. When will teachers be allowed to concentrate on teaching children? The initiatives make changes that do not necessarily significantly and demonstrably improve teaching. Change is well and good, but it must be change for the better. We are not against change. When will teachers be allowed to stay in the classrooms and educate children? If that were the case, significantly less administration would, perhaps, be required.

918. Mr McGrath: Nelson raised the issue of underachievement. The Department believes that the key to tackling that issue is improving the quality of teaching and, therefore, investing in the teaching workforce. Teachers should spend more time teaching; we do not disagree on that. As Gavin said, the model for the future will give schools more freedom on issues of professional development and will enable them to decide what sources to use to invest in their workforce. Again, we agree on that point. However, we undoubtedly expect future efficiency savings from the £2 billion education budget, which is a significant amount of money.

919. Ideally, that should come out of the non-school element. However, that means taking a fair chunk of savings out of £600 million or £700 million rather than £2 billion. That will be the challenge. We made the point that we start with the outline business case. We see the ESA as a vehicle to get the rationalisation of support services and to generate efficiencies, either to meet efficiency savings requirements in the centre — as agreed by the Executive — or, ideally, to go into the front line. That is the agenda. Twenty million pounds a year is there for the taking — it is almost in the bank. Mr Poots’s points are well made with us.

920. Mr Poots: To take the matter a little further, many of those who are employed have to justify the work that they do and that is where much of this change comes from. Teachers are not opposed to many of the proposals and ideas, but they get swamped with the numbers that come forward at the same time. Ten years ago, teachers had nothing like this to contend with. Now, however, they are being dragged out of the classrooms, the children are not getting the best out of their teachers and principals, and, ultimately, we are paying for that as it requires more administration. That is why I feel that further cuts are needed.

921. Mr Boyd: That is exactly the sort of feedback that we have received from teachers, school principals and teachers’ unions. The underlying premise is that school improvement can be achieved only in the classroom; that can be done only if there is reliance on the expertise of the classroom teacher and the principal of the school. That leads to the inevitable conclusion that we must free up their time to allow them to get on with teaching.

922. I will give another reflection on how we have managed to introduce some technology into the classroom. The Committee will be aware of the integrated and administration control system (IACS) technology that we are using for literacy and numeracy. One of the attractions of the technology is that records become available automatically. The teacher does not have to mark or write up on the work: the records are held and we can measure a child’s performance year on year. We managed to get some 20,000 children through that assessment in the autumn. It was a huge technical achievement, and we will have 50,000 children going through the assessment next year. The use of such technology can greatly ease the burden on teachers. Quite apart from the administrative and initiative issues that have been highlighted, that is an area where we can ease the burden on teachers.

923. The Chairperson: Can we move on to the outline business case? I appreciate members’ indulgence. We have done reasonably well over the past few weeks in managing presentations.

924. Mr D Bradley: May I ask a question about the previous topic? The message that we were given at the beginning was that the ESA would provided savings that would be an added bonus to the education system. However, from what Mr McGrath said earlier, ESA savings will end up subsidising shortfalls in the budget. Therefore we will not see much benefit at all.

925. Mr McGrath: There is no such thing as a snapshot that gives us the fixed pressures and the fixed budget, and that if one gets savings out of the budget — which would be ideal — they can be invested in front-line services.

926. If inflation rises faster than the provision made in the Budget, if pay awards are given that are higher than expected, if there are job evaluations, those have to be dealt with from the quantum of money that is made available to us by the Executive. That can mean that the ideal of where you would like to invest your savings is overtaken by the urgency of where you have to put them.

927. Many of the pressures that we flag up with the Committee in our discussions on monitoring rounds are beyond our control; few of them are generated by the Department. However, they must be dealt with; people have to be paid, inflation has to be met, job evaluations and health-and-safety issues have to be dealt with. That may mean that the “must" issues consume resources rather than the “desirable" issues.

928. Those issues enhance the need to introduce a more efficient administrative system that can squeeze savings out in the overall management structure from day one, and will provide a vehicle to challenge the support services over time to generate more savings. Everything that the Finance Minister said the other day suggests that efficiency savings of at least 3% — the First Minister recently mentioned a level of 3·5% — are here to stay. The education budget is the second largest chunk of the Northern Ireland block. Although it is desirable that it should be excused some level of efficiency savings, it is unlikely.

929. Therefore we need mechanisms to meet most of that 3% or 3·5% over time by way of genuine back-office support service efficiencies; we should not make efficiencies from front-line services. The fact that the resource position is becoming more challenging strengthens the case for administrative reform and efficiencies.

930. The Chairperson: I would like to move on to the outline business case.

931. Mr McGrath: The outline business case was submitted to the Department of Finance and Personnel late last year and was duly approved by it in December. It was made available when the Minister introduced the Education Bill, and it has been available on the Department’s website.

932. It is a robust piece of work that validates the case for the ESA as an organisation and which provides a vehicle to improve schools and to reduce the gap in attainment levels. It also provides a benchmark against which the work that Gavin and the Department will be doing can be measured. That will be to the particular benefit of the Committee and the wider community in future.

933. The outline business case evidences that from the outset there are significant savings of approximately £20 million a year to be garnered against an investment of up to £45 million. It would therefore pay for itself in three years — possibly sooner — depending on the initial costs. One of the advantages of having a prolonged period before the ESA is established is that more preparatory work has been done on organisational changes and how they could be achieved. That should avoid some of the other organisational mistakes to which Basil referred.

934. We will use the outline business case as a benchmark against which we will measure Gavin’s performance in the early years of the ESA. It is likely that the Department will look for further savings in senior staffing structures above those set out in the outline business case as the organisation beds down.

935. The Chairperson: This is an outline business case. When is the full business case likely to be finalised? The outline business case was finalised in April 2008, so it did not reflect the regional/local functional split. Could the outcomes of your work on that split radically change the number and level of staff projected in the outline business case as possible reductions?

936. Mr McGrath: First, we want the full business case to be available by the summer. It will underpin and validate the level of savings that are predicated in the outline business case, although some fine-tuning is necessary to develop the precise organisational structure. However, the overall envelope of senior posts around which this was based can accommodate the types of structures that we spoke of putting in place at local level and the degree of senior staffing associated with that. We do not believe that such thinking will undermine the fundamentals of the outline business case.

937. Mr Boyd: I cannot add to that. I simply reinforce the point that all our work to date has been within the envelope of the outline business case. Since April, nothing that we have done or turned up has made us reconsider whether we can achieve the targets set out in the outline business case.

938. I recognise that additional pressures might arise down the line, and I am conscious of Edwin’s comments about such possibilities. However, nothing that we have done in the intervening period has undermined any aspect of the outline business case.

939. The Chairperson: Earlier, we heard about the three levels of the transfer services. You said that transfer services will be subject to a medium-term review and that the innovative service will be subject to radical change. In giving evidence to the Committee, representatives and chief executives of the education and library boards said that the transform services are already subject to a three-board or five-board shared delivery and, in some of those service arrangements, a lead board. Where will the savings come from in the outline business case?

940. Mr Boyd: The number of shared services is relatively small; one example is the board of legal service, which is a single service housed in one board. Most of the big services — finance, human resources, and other support services — are on each board. Therefore savings will be driven out of that. The big savings will come from back-office services such as finance and human resources and other big services.

941. The Chairperson: That is outside the in-scope costs. The Department has identified approximately £1·3 billion that is out of scope of the RPA. Therefore we are talking about —

942. Mr Boyd: We are talking about £135 million, which relates specifically to costs involving 4,150 staff. We focused our efficiency modelling on a fairly narrow sliver.

943. Mr McCausland: Reducing the number of initiatives is a key area in which savings in the educational sector can be made. Rationalisation and the further mainstreaming of services would benefit schools and remove a huge amount of administration. Major savings can be made in that area. A key element of the outline business case is saving money.

944. What would be the difference in the savings made through the rationalisation of administration and those made through the rationalisation of educational initiatives? Have you done any work to see how those differences would stack up against each other?

945. Mr McGrath: You are quite right, as was Edwin when he made the point about teachers and new initiatives. Initiatives, even if money is granted, still distract from the core task. The key issue is the standard of teaching: we must let teachers teach. To a certain extent, we must keep it simple and not distract teachers with a plethora of initiatives, although many of them are important.

946. We are examining the number of earmarked budgets that we have. There are two issues. First, do we need so many initiatives? Initiatives complicate the position throughout the system and complicate the situation with teachers.

947. Earmarked budgets also add to the Department’s administration costs. We are also asking whether some of the earmarked budgets are past their sell-by date. We are questioning whether we need an earmarked budget for certain things or whether the money could be redeployed into the common funding formula. We will come back to the Committee on that.

948. We have not quite been able to do the de-sizing that you talked about, although we regard the savings as one slice of that. It is an interesting debate. On the one hand, there is a view that further savings may be gained beyond those outlined in the business case, and that may happen over time. There is another, equally merited, view that asks how we know that we will get those savings — other exercises have not demonstrated such savings in the past.

949. We are taking a robust but measured approach. Over the two or three years at the start of the ESA, that level of saving can be taken out of the £135 million. That is the starting point for savings; it is not where we are ending.

950. Mr Boyd: I have made the point before that bureaucracies breed bureaucracy. Bureaucrats, like me, think of more and more things to do. That is why we must refocus on the model every so often. In this case, the model is about schools, teachers, children and school principals.

951. There is an argument that once the focus is kept on the model, it challenges an organisation to consider — every day, every week and every year — why any money at all is being spent at the centre and whether it absolutely must be spent. That is not a criticism of what has gone before; it is a challenge that, in my experience, an organisation must set itself every year to make sure that it does not just grow and grow. It is important to keep thinking of the next good idea.

952. Mr McCausland: Is there a point when you will get a figure for the potential saving that can be made by rationalising all those initiatives?

953. Mr McGrath: The Department will consider that, simply because we face severe resource constraints to allow it to do what it needs to do in the future. The combination of reducing some earmarked budgets at the same time as we move into the ESA might make it difficult to determine cause and effect from savings.

954. Mr Boyd: The Department has developed the Every School a Good School policy, which sets outs what is expected from schools, and everything follows from that. It makes schools’ objectives and focus clearer and, in itself, will lead to a rationalisation of initiatives.

955. Mr McCausland: I was really asking whether you know how many people are employed in administering all those initiatives and how much teacher time they involve. That should be fairly easy to work out — for example, there may be 49 secretaries and administrators working on them.

956. Mr McGrath: I do not know that because there are not many people in the Department whose sole job is to work on such initiatives; nor am I clear how many people work on them in the education boards. I agree that we should consider simplifying initiatives, redirecting funding into mainstream funding and taking out as many savings from that as we can. That will lead to a simpler world, which we are already reaching, in which the agenda is to raise standards and reduce the gap in attainment. To reach that, we must invest in the wider education workforce, improve the infrastructure and streamline the management of the education service.

957. Mr Boyd: We got the detailed analysis of the current situation. Between the Curriculum Advisory and Support Services, C2K, the curriculum part of the Council for the Curriculum, Examinations and Assessment, the Regional Training Unit, and the advisory part of the Council for Catholic Maintained Schools, we have 750 staff at the centre. That is 750 people who you might otherwise call professional staff, which is a significant number in anybody’s book.

958. Mr Poots: I note the £20 million savings and the £700 million budget. That coincides with the 3% administration saving that we are supposed to be making. However, a 3% efficiency saving is required from all Departments. Therefore if the £20 million equals the 3% saving from the £700 million, a 3% saving must still be made on the remaining £1·3 million.

959. I do not accept John’s views that that is the beginning of savings, because ultimately £60 million of efficiency savings must be made from the Department of Education’s budget. If only £20 million is being saved from administration, the other £40 million has to be saved from front-line services. That is unacceptable. We have to sharpen the knife and return to consider cuts in administration. Rather than make the savings in five or 10 years’ time, those efficiency savings must be made over the next two or three years. It is fair enough as far as it goes, but it does not go far enough.

960. Mr McGrath: I think that we agree on that. The point was made earlier that the ESA is seen as a vehicle to further challenge the basic infrastructure in order to make the savings that the centre will expect from us and, as far as possible, to protect front-line services. If that is not done, some of the efficiency-savings targets will affect the front line because of the sheer scale of the budget. That is the challenge.

961. The point was made last week that the current level of efficiency savings has meant that some money had to be taken from the schools’ budget, because there was nowhere else to take it from. We need a vehicle that will allow us, over time, in the next three to five or 10 years to challenge the system and to squeeze it further and further. If savings are not made from the support structure, they will have to be made from front-line services. That will mean that difficult issues may arise down the line, involving how services are to be provided, the balance between central and local contracts, the centralisation of back-office functions, and perhaps even outsourcing. To take Edwin’s point, we must test every option in order to protect funding for the front line.

962. Mr Poots: If I was in the witnesses’ position, I would ask: where do we start from? I do not think that they would be starting from the present position; they would scale even further back. Where would the Department start from if it had a clean sheet? That is where it could make significant savings. It is not good enough that for every £1 of the £2 billion budget spent in the classroom, £1 is spent on administrative support.

963. Mr Boyd: At a previous meeting with the Committee I got into a little bit of bother by identifying some systems that we have considered elsewhere in the world, where 80% of the budget is allocated to the school or the classroom. For the avoidance of doubt, I am not saying that we can do that overnight, but we have looked at systems where that has been achieved. The counterbalance is that there is a fairly healthy scepticism around the table about whether we can deliver the savings that we are talking about. I recognise that.

964. Mr Poots: That is just Basil; do not worry.

965. Mr Boyd: I have to be careful not to over-commit, either to the Committee, to the Minister or to the Department, because this is an important issue. I have to manage in the context that we find ourselves in. The education system is part of the public sector, and we operate within the existing contracts of employment. I understand precisely your points and am keen to hear directions from the Committee on the general line that should be taken; however, I must balance that with what I believe is possible in the short term. We are only talking about the first three years.

966. Mr McGrath: It is important that £1·3 billion of the £2 billion budget goes directly to schools. The balance includes the capital budget — which is another £200 million to £300 million — and there is also funding for the youth services and special education. However, the balance between spending on the front line and spending on administration is not 2:1.

967. Mr Poots: The entire budget for a school is not all for teaching; it also covers administration.

968. Mr McGrath: I am aware of that. On the other hand, some of the earmarked budgets are not part of that budget, but they go to schools. It might be useful, if, in a financial discussion at the Committee, we were to try to get a clearer picture about how much of the budget goes to the front line, directly or indirectly, and how much goes to administration. I do not think that the ratio is 2:1, which would mean that a third of the budget is spent on administration. However, it could be that the ratio is 80:20; it is important to analyse that and pin it down.

969. Mr Boyd: To give a simple example, the Department spends £85 million a year on transport; our kids travel 1·5 million miles a day going to school. That figure is reached as the result of various policy decisions. In addition, the Department is locked into allocating between £37 million and £38 million to Translink, on which there is very little negotiation — Translink has to make a return. With a different policy perspective different outcomes might be possible, but those are big issues that require serious consideration, as serious amounts of money are involved.

970. The Chairperson: John, when you are back next week, we may talk about financial matters. I wonder how many pupils use their Translink bus pass every day in comparison with the cost to the Department of covering it. There is no way of monitoring use of bus passes for a set period. For example, my daughter does not use her bus pass every day because she sometimes has other ways of getting to school. Such issues are practical realities, and money can be saved in that area. A huge amount of money is spent on travelling to school.

971. Mr Boyd: The Department has targeted £135 million from which to save £20 million. There are several big issues — you have just mentioned one — that we have not considered seriously because we have not had the opportunity to do so. I imagine that you will encourage us to do that quickly.

972. Mr McCausland: If children are to be bussed in future in order to get the socio-economic mix that the Minister wants in the secondary sector, the bill for buses will go through the roof. I mention that now by saying that it will not happen.

973. Mr Lunn: Before he left, Basil talked about the severance costs and the rules for early retirement. Will the ESA take over responsibility for the operation of all pension schemes, ideally on 1 April 2009?

974. Mr Boyd: The single employing authority will take responsibility for all staff. The vast majority of staff are members of the Northern Ireland Local Government Officers’ Scheme (NILGOS); a small number will be members of the Civil Service scheme and other schemes. The ESA will not take over the operation of the scheme, but it will take over the responsibilities.

975. Mr Lunn: Who will decide whether to continue to apply the early retirement factors, for instance? I note that three dates are set out for the reduction in the enhanced pension arrangements. Will that be the ESA’s responsibility?

976. Mr Boyd: That is a matter of policy. First, the pension scheme rules decide people’s entitlement. Secondly, the reference to that in the outline business case reflected the fact that the scheme’s rules had been changed to take account of the age-related discrimination legislation. Previously, people in the scheme who were over 50 were treated differently from people under 50. The scheme had to be changed, and it was to be wound out over a period of three years. That is now a matter for the Department of Education to clear with the Department of Finance and Personnel.

977. Mr McGrath: I can provide an update on that in the context of the wider RPA changes. The trades unions agreed a principle in the area of health.

978. The terms available to people who leave at the end of the process will be the same terms available to those who leave at the start; it should not change the package over a two- or three-year period. That principle should apply no less in the education sector, and colleagues in DCAL and in the Northern Ireland Library Authority are pursing the same changes there. We are dealing with DFP to ensure that the drop-down highlighted in the outline business case is drawn out longer and that it does not happen against that timescale in order to allow the review of public administration changes in education. Therefore, people who leave at the end of the process will be eligible to the same terms as those who leave earlier. Again, because of the robustness of the business case, it does not make any difference to the costs because we have assumed the highest level of cost anyway.

979. Mr Lunn: Have you noticed any disillusionment in the profession? Has there been an increase in requests for voluntary severance under what would appear to be slightly more advantageous terms at the moment than what they will get in a few months’ time?

980. Mr Boyd: No; we have not noticed an increase. I am not aware of any data on that, but the pension scheme has noticed a significant increase in the number of people inquiring about what their pension entitlements would be.

981. Furthermore, we have made it clear that any voluntary severance scheme would be targeted; in other words, it would depend on whether there was a continuing need for the job to be done. There is a need for educational psychologists and, if anything, that need is not being fully met. Therefore it is highly unlikely in those circumstances that a voluntary severance scheme would be available for educational psychologists. That is different from people who are working in positions that are at risk, so it will be a targeted scheme.

982. Mr Lunn: Will there be any difference in the treatment of those who are made compulsorily redundant and those who volunteer for redundancy?

983. Mr Boyd: It is a significant priority for us to avoid any element of compulsory redundancy. There is no requirement for compulsory redundancy, but the terms in the voluntary scheme are contractually binding; therefore they would also apply in a compulsory redundancy.

984. Mr O’Dowd: I have a comment rather than a question. I am concerned that Edwin is advocating that hundreds, if not thousands, of administrative posts should be dismissed from the education system. For various reasons, the economy cannot afford to lose hundreds or thousands of public-sector jobs.

985. Mr McCausland: Rubbish.

986. Mr O’Dowd: The economy cannot afford to lose them. The private sector is on its knees, and if we start dismantling the public sector, the economy will collapse.

987. Mr Poots: The money would be better spent in the classroom.

988. Mr O’Dowd: I will come to that point.

989. A £2 billion budget needs to be administered, no matter how it is done. If we divert a significant percentage of money into schools, it must be administered, which means that our principals and vice-principals will turn into accountants.

990. Mrs M Bradley: They have already turned into accountants.

991. Mr O’Dowd: They will need an administrative team around them. Therefore the money will not go directly into the classrooms; you are only fooling yourself by saying that. All you are doing is sacking thousands of workers to achieve a goal.

992. All services need to be examined closely. Thirty-five million pounds is spent on transport. I cannot let your comment go, Nelson, about the Minister looking to bus pupils to create a social mix. Every day, 4,000 pupils are bussed from north Down to various grammar schools. If those children attended local schools rather than being bussed from north Down, how much money would we save?

993. Mr McCausland: The Minister has no power to stop that.

994. Mr O’Dowd: As the days and weeks evolve we will see what happens, but I will not get into that argument now.

995. There is a £63 million budget for school meals. Perhaps that service could be provided more efficiently. We need to look at each area of our education system to consider whether the service is being delivered efficiently before sacking thousands of people simply because it looks good on a spreadsheet.

996. Mr D Bradley: Several costs are excluded, including the huge cost of rationalising the schools estate; five other cost areas are also excluded. Do those exclusions not invalidate the business case to some extent?

997. Mr Boyd: I go back to the point that I made earlier: we focused on what could and should be done quickly and on what was logical to do quickly. That process led us to the cost figure of between £135 million and £140 million and to the 4,100 staff that we anticipate reducing to about 3,600.

998. Other huge change programmes need to run in parallel with the business case, but this exercise did not consider those.

999. Mr D Bradley: Is this just a snapshot?

1000. Mr Boyd: It studied a very specific area of activity that we believe can be influenced very quickly, covering a three-year period.

1001. Mr D Bradley: How can you ensure that the model is dependable?

1002. Mr Boyd: I will address the issue from a slightly different perspective. John McGrath recently told the Committee that the change-management process is huge and will go on for many years. We must manage that process from an organisational perspective.

1003. I fully expect the Department to drive change from a policy perspective and from a perspective of controlling the budget. The Department will continue to drive us and pressurise the organisation to deliver the flip-round in the budget — in a planned way — that we are trying to achieve.

1004. Mr McGrath: We are trying to create an ESA that will provide leadership, raise standards and close the gap; it will also deliver efficiencies. The outline business case demonstrates that the organisation has an unfulfilled potential to demonstrate efficiencies. During the initial years, the preparatory work demonstrates that £20 million of savings is already in the bank. Further savings will be made as the organisation beds in.

1005. Not every public-sector organisational change has guaranteed savings from the very start — they are mostly aspirational, but the £20 million is guaranteed in a robust review. It can identify posts that could be removed without affecting the quality of service delivery. As time passes and the organisation beds down, it will tighten up and meet the challenges in relation to the support and back-office functions, which will generate the level of efficiency savings that may be needed simply to meet budgetary pressures. If those savings go to the front line, so much the better, but Gavin highlighted that money is tied up in various professional development areas. Those funds could be loosened up and made more available for school principals so that they can meet what they regard as the development needs of their teachers.

1006. Some efficiency savings go to the front line, but they do so in a very prescribed model. However, school principals should have a greater say in identifying the funds that they need to drive forward professional development in their schools. The role of the ESA is to help to support that. All our conversations with school principals have produced very positive responses to that model.

1007. Mr D Bradley: Are those six areas covered in the full business case?

1008. Mr McGrath: This cannot be a business case for the level of efficiency savings in the education sector for the next five years. It is a business case to justify the move from the present organisational model to the single organisation, and demonstrating that in so doing £20 million has already been saved and that a vehicle has been created to drive out further efficiencies.

1009. Mr D Bradley: There are other areas in which you do not yet know the costs or the possible benefits. Surely you should take those into account.

1010. Mr McGrath: There is a limit to which we can forecast the future. As we said, many pressures arose in the education budget of which we were not aware 12 or 15 months ago. We need a more efficient, tighter management-focus vehicle to cope with those challenges.

1011. Mr D Bradley: This document states that more detailed work needs to be done.

1012. Mr Boyd: We identify a major change programme and we identify a major price tag to go along with it; we then make a business case that sets out the benefits against the price tag. It is for the Minister to make a judgement against that.

1013. If there is a significant price tag when we move into other change programmes, departmental approval will be required; a business case will be required and it will have to go through DFP. That will be delivered when we get round to doing it. That is probably not a very satisfactory response, but it is the best that I can give you at this time.

1014. Mr Lunn: I hope that I get away with this question, Chairman: is the cost of the top management board of the ESA included?

1015. Mr Boyd: We are confident that the figures include everything that is associated with running the board.

1016. Mr Lunn: In an ideal world, if you were putting the board together, would you like to see the majority made up of local councillors?

1017. Mr McCausland: Perhaps you would prefer experts.

1018. Mr McGrath: As Gavin does not have that responsibility, it is invidious to ask him.

1019. The Chairperson: Page 41 of the business case concerns middle management and professions; however, we need a breakdown. The status quo is 762 staff, but option 4 is 579 staff; what is the breakdown in reductions between what we deem to be middle management and professionals?

1020. Mr Boyd: Typically, we use salary grades to identify staff; however, I cannot remember the particular classification of salaries. There are groups of professionals who, because of their professional qualifications and status, are paid at the equivalent level of middle management, which might be responsible for significant numbers of staff. I can get you more detail, but I do not have that information to hand.

1021. Mr McGrath: Do you mean how are the predicated reductions split between those two groups of staff?

1022. The Chairperson: Yes.

1023. Mr Boyd: I can get you that information.

1024. Mr McCausland: I think that John O’Dowd is being somewhat disingenuous — I use the word “disingenuous" because I am not allowed to use language any stronger than that. It is inappropriate and disingenuous to suggest that savings can be made in education without reducing the number of people employed. Salaries are the biggest cost. If we want to put the maximum amount of money into front-line services, that is where cuts have to be made. That may not go down well with some of John O’Dowd’s friends in the trades unions; however, that is the reality, and any attempt to evade that is window dressing to save face.

1025. Could we ask the Department to produce an assessment of how much money is spent — it may only be a guesstimate — on the administering, monitoring and servicing of all funding initiatives. We need to get some idea of the cost, not just for the Department but for schools. How much principals’ time is spent on that? A rough estimate would be helpful, as that is a major saving that could be made. I am keen to see that done. A guesstimate would give us some idea as to whether we should be putting more pressure on the Department to move in that regard.

1026. Over the years, the funding system has not been right. However, instead of fundamentally reviewing it, extra bits have been stuck on to deal with this and that, and we have ended up with a mishmash. An assessment is needed to establish how much the Department should be prioritising that. Principals want to see that, and that is how to get more money to them.

1027. The Chairperson: I realise now that you are referring to John O’Dowd; I thought, at first, that you meant John McGrath.

1028. Mr O’Dowd: Nelson is right; I am not saying that there should be no job losses in the education system. The ESA is about the delivery of an efficient education system, and that will involve job losses. My concern is his colleague’s comment:

“We have to sharpen the knife and return to consider cuts in administration". That should not always be the first port of call.

1029. Let us ensure that the £2 billion budget is spent efficiently. I have no doubt that, in future, Nelson will stand with the trades union movement, campaigning on their behalf against the Education Minister as he has in the past.

1030. The Chairperson: Both sides have aired their views on that.

1031. Mr D Bradley: Can we have some information additional to that on page 48 of the outline business case, which relates to the six areas that have been excluded? I want to know more about the indications of costs and benefits that might accrue from those areas.

1032. Mr Boyd: We will send you that.

1033. Mr McCausland: Please send us a guesstimate for the costs of initiatives.

1034. Mr McGrath: I am cautious. The member is asking us to trawl 1,250 schools and ask each principal to calculate the time that he spends dealing with certain initiatives, having to specify which initiative. That would add to the administrative burden on schools. I seriously doubt whether, when we add up the responses, we will obtain a meaningful figure.

1035. Mr McCausland: I admire John’s simplified view. As a civil servant, he can always find reasons why we should not do something; it must be a part of their training. One does not need to trouble 1,250 schools, as he well knows. We are asking for a guesstimate; we are not asking for a figure to the precise penny. How many people in his Department are administering initiatives?

1036. Mr McGrath: The Department is separate; I am nearly sure that the member said “each school". If you want to take three or four typical schools in each sector, we can do that.

1037. The Chairperson: The example that was brought to the PAC was the £40 million that was spent on numeracy and literacy. Teachers told us consistently that if the money that had been allocated for numeracy and literacy had been put into front-line services — teachers — there would have been a better outcome and the report that went to the PAC would not have been so critical. That is the kind of issue that Edwin and Nelson were driving at.

1038. We set aside a huge amount of money on a project that we hope will change the world. However, to achieve that we may use 80% of the money on administration but not change the outcome. Forty million pounds was spent on improving numeracy and literacy, but there was no change. Will we spend £12 million only to see no change?

1039. Mr McGrath: In future, as far as possible, we want to give unlabelled funding to schools and specify the standards that outcomes must meet. The more small pockets we have — and we have discussed this before — the more time is spent monitoring them than is spent on monitoring the vast bulk of the money. That is not conducive to positive outcomes. We want to take that direction in future. However, as I told the Committee previously, if we were to stop some of those earmarked budgets, there would be some interests arguing that we need a special fund for X or for Y. The largest chunk in the earmarked budget is the C2K budget, which we regard as important. Were we to do that, the Committee would have to recognise that certain narrow initiatives would be abandoned that some interests regard as important. Whereas a strategic approach that put all the money in, asked schools to deliver, and monitored them against outcomes would reduce the number of special initiatives. That is an approach that I would support; however, it is swings and roundabouts.

1040. Mrs M Bradley: Principals may be accountants, but they are also teachers, particularly in the primary sector. That must be taken into account.

1041. Mr D Bradley: My question is addressed to John and Catherine. What is the position of teachers who have applied for redundancy?

1042. Mr McGrath: The issue of teacher redundancies is difficult. Changes mean that the cost cannot fall on the scheme itself but must be met by employers. We flagged it up in the strategic stocktake — it was almost the biggest bid. However, that bid was linked with whether we wanted to pursue the rationalisation of schools through teacher redundancies. It is almost a question of investing to save.

1043. One of the major challenges that emerged from last week’s stocktake statement is that a lack of provision for premature retirement and redundancies next year may create significant problems. The question is how to strike a balance. We may return to the Committee before too long to tell it that the Minister proposes to carve out some money for redundancies and early retirements. It may be argued that that is not the most important or front-line need. Rationalisation is an important and a difficult issue.

1044. Ms Catherine Daly (Department of Education): John has covered the points well. The key issue is value for money, which is fundamental to any public expenditure decision. Early redundancy decisions must be taken in the context of value for money in individual cases, and that would be in the wider context of rationalisation or how redundancies benefit the system as a whole.

1045. Mr D Bradley: Is there a time frame for those plans?

1046. Mr McGrath: We want the resource proposals for next year; that is one of the proposals in the strategic stocktake. There is no funding available for it now, and it is one of the issues that we will discuss with the Minister.

1047. Mr D Bradley: What is the position of those who applied before the deadline in November 2008?

1048. Mr McGrath: I am not sure of their technical position. There may be issues if their applications fall into next year.

1049. Ms Daly: I do not know the exact timing of cases that are in train, Dominic; may we come back to the Committee on that?

1050. Mr D Bradley: Will you provide the Committee with a detailed update on the situation?

1051. Mr McGrath: Yes.

1052. The Chairperson: John and Catherine, thank you very much. That concludes the evidence session on the Education Bill.

4 February 2009

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

Witnesses:

Mr John McGrath
Mr Chris Stewart

 

Department of Education

1053. The Chairperson (Mr Storey): I welcome again honorary members of the Committee for Education, John McGrath and Chris Stewart. Their presentation will be on the controlled estate.

1054. Mr Chris Stewart (Department of Education): Good morning, Chairperson and members. We are glad to be back. I am sure that the privilege of honorary membership does not extend to voting, so we will content ourselves with making presentations.

1055. Mr John McGrath (Department of Education): We are here for the tea and scones.

1056. The Chairperson: You are welcome to them.

1057. Mr Stewart: I am trying to give them up, so I will forego that pleasure. My presentation, which will be relatively brief, follows on from the previous session in which members discussed the proposals for representation and advocacy for the controlled sector.

1058. Today we propose to deal with the related issue of the ownership of the controlled estate. Members will be familiar with the underlying drivers and the rationale for the proposal in paper 20. It stems from concerns that were expressed by some members of the Committee and by other stakeholders about a perceived conflict of interest if the education and skills authority (ESA) were to own a group of schools.

1059. The paper sets out proposals for a separate body to take ownership of what are known as controlled schools. Members may ask in response to that proposal why there is a need for two bodies; why not simply combine the representative body and the ownership body in a single organisation? The answer lies in the policy decisions and requirements under which we must work. It is the Department’s view that ownership of the controlled estate must be on a statutory basis. It involves the stewardship of public assets worth some £2·3 billion; therefore we feel that the appropriate solution is for a statutory body to take ownership.

1060. However, the Department’s policy is also that all the representative bodies must be non-statutory and have no statutory functions in order to ensure equality for all sectors and all types of school. Thus the Department’s policy is that statutory and non-statutory functions cannot be combined in a single body and that there is a need for two organisations.

1061. However, as signalled in the paper, the Department recognises the need for close links between the representational body and the ownership body in the controlled sector; perhaps through joint chairmanship or some overlap of membership or perhaps through a statutory duty on the ownership body to consult the representative body about the discharge of its functions.

1062. Central to the role and functions of the ownership body is the ownership and stewardship of the assets in the controlled sector. The paper contains several potential additional functions that may be added to that body. Owners of schools tend to have a role in appointing governors, so it may be appropriate to consider whether the ownership body should have some role in appointing or suggesting some governors for controlled schools. However, I assure the Committee that that is quite separate from the ongoing role of the Transferor Representatives’ Council (TRC) in appointing governors and would not be at the expense of that role.

1063. The ownership body may also have a role in making development proposals, particularly in what I have termed a safety-net capacity. If there is an identified need for a school development in an area but for some reason there are no proposals to meet that need, the ownership body might be charged with making a proposal to plug the gap. That would be a last resort or safety-net function.

1064. The paper also sets out a possible longer-term vision for the controlled sector. That stems from the policy on accountable autonomy for schools. In future, some boards of governors of controlled schools may be able to take ownership of the physical assets of the school and thus achieve greater autonomy and provide a closer link between the school and the community that it serves. It should be stressed that that is a long-term vision, and no board of governors would be compelled to take on that role. Part of the role of the controlled schools ownership body might be to work with and support boards of governors to prepare them for taking on that responsibility if they wished to do so.

1065. The paper sets out options for the nature of the body and its accountability arrangements and identifies the Department’s preferred option: a statutory public authority. As I say, the Department’s view is that that is the only option that provides sufficient accountability and safeguards for this vital public asset base.

1066. The paper also deals with other important technical matters, mainly financial, notably the potential treatment of value added tax (VAT), stamp duty and land registry fees. I assure the Committee that we are talking to our colleagues in the Department of Finance and Personnel and the Treasury to minimise the potential effect of the transfer of assets on the Department’s budget and on the public purse.

1067. Ideally, if the first and second review of public administration Bills could be implemented at the same time, there could be a single transfer of assets from the education and library boards to the new controlled schools ownership body rather than two transfers of assets. However, that would involve extremely challenging timescales and could in no way be guaranteed.

1068. In previous sessions members asked us to return to the subject of the disposal of assets and the potential for inequality between sectors stemming from the rules on those disposals. Those rules are determined, and occasionally changed, by DFP and are based on the central principle that resources — the proceeds of the disposal of assets — are returned to the centre for reallocation according to assessed need and determined priority. The minor exception to that at present is that education and library boards are permitted to retain a small proportion in order to encourage them to dispose of surplus assets. Most proceeds are returned for reallocation. It is through that principle that equality will be ensured because resources will be reallocated according to objectively assessed need. The same will apply to other sectors for which there are clawback arrangements that are applied when assets that are funded by capital grants are disposed of.

1069. From time to time, members have suggested that the proceeds of asset disposal ought to be hypothecated or ring-fenced to the sectors or areas where the disposal occurred. However, that would be extremely problematic. It must be borne in mind that the proceeds of an asset disposal do not in any way constitute extra moneys for the Department of Education; they are netted off its capital allocation. Therefore hypothecation or ring-fencing would lock a significant proportion of the Department’s resources into historical patterns of provision when the assessment of need may in fact suggest the need for a different pattern of resource allocation. Ring-fencing might thus make it more difficult to achieve equality.

1070. The Department is particularly concerned that ring-fencing could seriously distort the area-planning process. Area planning will be based on the objective assessment of need and determination of priorities and the allocation of resources accordingly. In the current financial climate, that will inevitably involve making difficult choices between competing demands. It is difficult to see how that process could operate fairly and effectively if it were to be constrained by historical patterns of distribution of resources. For those reasons, we do not propose the ring-fencing of the disposal of assets.

1071. That is a brief summary of what is quite a technical section of the paper. We welcome the views of the Committee because the paper is out for consultation. We will, of course, bring it back to the Committee when the consultation finishes, and we will be happy to answer members’ questions.

1072. The Chairperson: Several issues arise from the paper and its reference to the controlled estate. You referred to one of them — the Committee has had a concern for a considerable time about the equity in how assets are disposed of and the money distributed. Legislation on capital grants was enacted in 1974 or 1977. My understanding was that a non-controlled or maintained school that applied for capital works raised the money, did the work, and then applied for a capital grant, which was paid back to the trustees. State money is given to a privately owned organisation.

1073. If, due to having become surplus to requirements or demographic decline, that estate is sold, not all the money returns to the Department. In fact, only a small percentage goes to the Department; most goes to the owners and trustees. How is that fair and equitable?

1074. The capital grant covers all the costs, yet the money recouped from the disposal of a controlled-sector asset goes to the board. You said earlier that money is distributed on an analysis of need in any sector, but there is no equality in how that is done. The Minister claims to want to ensure equality, so how will we address that glaring inequality?

1075. I read nothing in the paper that deals with that problem; indeed, I see that no work has been done to establish the group. January 2010 is still talked about as the date for the establishment of that group, but not everything is in place for that to be possible.

1076. I am also concerned by the paper’s reference to the ESA initially having ownership of the estate in 2010. That is unacceptable. Chris, you have said many times that the ESA cannot be the body that owns the estate. Nevertheless, this paper states that if the body is not established, the ESA will own the controlled-schools estate for a time.

1077. Mr Stewart: I will deal with your first concern and then return to your point about the timescale.

1078. The arrangements are as you describe with one important exception, which contains the reassurance that you seek. Clawback arrangements are included in the grant agreement for an asset funded by a capital grant. A proportion of the resources come back to the Department, and that proportion of resources would not be small, as you fear. The Department will get back what it put in, and that is why it is not flagged up significantly in the paper.

1079. We are satisfied that the continuation of the existing arrangements will ensure the equality that you seek. The Department would receive a significant proportion of the grant. The clawback arrangements for 100% publicly funded assets mean that the Department recoups what it puts in.

1080. The Chairperson: I want to tease out some further information. Does the Department have an analysis of how the disposal of assets in the maintained and controlled sectors has worked in practice in recent years? Is that the desired aim of the new arrangements or is that how it has been since the change to the capital-grants system?

1081. Mr Stewart: Both. There are some longstanding grant agreements, and, if we delve deep enough, I am sure that differences could be found in the precise clawback arrangements over time. Practices and the requirements of DFP have developed over the years; a grant agreement that is drawn up now may not be exactly the same as a grant agreement that was drawn up in 1974. Our clawback arrangements will be applied to all grants at present, whatever DFP’s requirements may be.

1082. Mr McGrath: In a sense, the proposals for the body do not affect the funding arrangements; they are separate. However, there is a view that the ESA should not own any of the estate because it would be the determinate of area planning. Eugene Rooney will be here later, and he can provide further insight into the operation of the capital grant and clawback arrangements that apply to voluntary grammars. In essence, however, we get back pro rata what we put in.

1083. The policy on disposals is governed from the centre, and, in the past couple of years, the CART report brought added impetus to that. As Chris said, the centre counts in expected receipts, which are included in our baseline figures. However, this year, we thought that we would get £30 million of receipts; our budget settlement envisaged that £15 million of that would go back to the centre, and we would keep £15 million. Our capital plans included the expectation that £15 million of disposals would come in and we would recycle them. As Chris said, disposals are not extra — they are built from at the beginning. The drop in the market over the past 24 months has had a significant effect on capital resources.

1084. If you begin to hypothecate, you might maintain investment only to the level of disposals, which would not be a fair way of meeting need. Eugene Rooney will expand on the capital grant and clawback arrangements later. If necessary, we can provide a paper on that specific arrangement, which is unaffected by the body for the controlled estate.

1085. The Chairperson: That would be useful. Will you speak about the timetable?

1086. Mr Stewart: Ideally, we would all like the controlled schools ownership body to be established by 1 January 2010, as it would mean a single transfer of assets rather than two. However, the RPA programme is based on the need for two Bills and the recognition that the timescale is extremely challenging for us. As we indicated in our policy memorandum papers, the target for the implementation of the second Bill is 1 January 2010, or 1 April 2010 if we need a fallback position. It may be 1 April, perhaps even later, before we can bring the controlled schools ownership body into being. However, we would like that period to be as short as possible.

1087. The ESA would be the owner of a group of schools. We recognise the difficulty and the concern in that, so it is in everyone’s interest to ensure that that period is as short as possible. However, we cannot guarantee the Committee that we could reduce it to zero.

1088. The Chairperson: Do we not run the risk of having the same concerns as the voluntary grammars in relation to the single employing authority? Do we not run the risk of the controlled sector saying exactly the same? If the estate is under the control and ownership of the ESA, the ESA will have the power to appoint boards of governors, and the functions that you outlined in the paper would be part of the body, which would be responsible for the controlled sector and under the control of the ESA. Therefore all the concerns that people have about the ESA will be realised in two sectors, that is, the voluntary grammar and the controlled sector, and that makes it even more difficult.

1089. Mr Stewart: There are two separate points. First, the ESA will appoint the bulk of governors in controlled schools because the community governors would be the largest category by far. Therefore, I do not think that that issue would change, no matter how things turn out.

1090. On the more fundamental concern, the issue is one of a perceived conflict of interests; we recognise and accept that. The issue is about the most robust and effective measure that we can take to reduce or manage that risk. If we can minimise the period in which the ESA owns those schools to a matter of months, the risk becomes extremely small.

1091. It still exists, and stakeholders may continue to have a negative perception of it. However, I am not certain that it is practicable for us to go any further than that.

1092. Mr McGrath: The critical issue will be the perception that the ESA might somehow be more partial in determining decisions on capital expenditure.

1093. The Chairperson: From others?

1094. Mr McGrath: Yes. The period of ownership would be as limited as possible. First, there will be a spotlight on the ESA to demonstrate that it was doing nothing that might reflect partiality. Secondly, it is unlikely that significant capital decisions would be taken in that period unless they were already in the pipeline. In those circumstances, the scope for something going awry in that limited period is very limited.

1095. Mr O’Dowd: Can you clarify DFP’s involvement or guidelines on the matter? Who will own the voluntary grammar-school sector estate? If it is owned by a group of trustees or individual schools, what mechanism will ensure that public money is secured for capital expenditure?

1096. Mr Stewart: The second question is perhaps more easily answered than the first. With the exception of controlled schools, nothing in the RPA will change the ownership of schools of any type. In the voluntary-grammar sector, schools will continue to be owned by the trustees or, in some cases, by the boards of governors. In every case in which a school is funded through a capital grant, there is a formal grant agreement that is signed by the Department and by the owners of the school. That includes the clawback arrangements that ensure that in the event of the asset being disposed of if it is no longer required, the Department gets back what it put in.

1097. Perhaps the most important point about the DFP rules is that not all the proceeds of asset disposal come to the Department of Education; some are retained at the centre by DFP for allocation to Departments according to a central assessment of priorities. Those rules change from time to time, but the core principle remains the same: assets are returned to the centre and reallocated on the basis of objective and assessed need.

1098. Mr B McCrea: Following on from that point, there is concern among voluntary grammar schools and others that the ESA will take control of their estate in some way.

1099. Mr McGrath: As Chris said, there is nothing in the proposals that affects voluntary grammar schools’ ownership of their estate.

1100. Mr B McCrea: That is OK; I just wanted to hear you say it twice. However, the nub of the concern is the failure to recognise the blatant inequality — the inequity — that, some time ago, the transferors gave up their schools for the public good and now feel that they are being disadvantaged. The issue appears similar to land that was vested for public use and which is no longer required; therefore, under vesting regulations, it was offered to the people who originally owned it. I think that you are going headlong down the path of centralised ownership, which means that the voluntary grammar sector and the Council for Catholic Maintained Schools have a perceived advantage over the controlled sector. I do not think that that has been tackled.

1101. Mr McGrath: There is an important difference between the transferors handing over their assets for what, at the time, they regarded as good reasons and a vesting process whereby the state decides, for the greater good, to take ownership of a property, notwithstanding the owner’s views. Therefore it is appropriate that if that public need ceases, the previous owners should, in certain cases, have first refusal on getting the property back.

1102. There are differences between the two cases.

1103. Mr Stewart: There is another important technical consideration. The rules come from the Crichel Down case: where there has been compulsory acquisition of an asset that is subsequently disposed of, that asset is offered to the original owners for sale. I am not certain that the Churches have expressed an interest in buying back the schools that they handed over to the state.

1104. Mr B McCrea: I am not suggesting that they have; it is I who am suggesting it. It is a basic inequality that some sectors are perceived as retaining estate control. Your paper states that there are advantages and disadvantages. However, a significant sector has, I have been told, been raped and pillaged over the years. I do not suppose that there is much point in going on about it other than to impress upon you that I do not think that your paper or your proposals address that perceived hurt and inequality. You have not made the necessary inroads. After the Committee’s last meeting, I spoke to representatives of the TRC, who said that they are still not happy.

1105. Mr McGrath: In a guarded way, may I ask for a definition of rape and pillage?

1106. Mr B McCrea: There was a perception that the controlled sector took the brunt of school closures because that was easier. I do not know whether that is right or not, but it is a perception. One of the reasons for building up a representative sectoral body is to address that issue. There is a perception that the controlled sector is the poor relation.

1107. Mr McGrath: There is that perception, which is outwith the ownership of schools. There are issues of achievement in some areas. There is an equal perception that CCMS has done more to drive forward closure and rationalisation than the controlled sector has. In other areas, there may be a perception that the controlled sector has not driven forward rationalisation linked to quality, and indeed has resisted that. However, those perceptions are important and must be dealt with.

1108. This body has been set up because there is a perception that it would be inappropriate for the ESA to own the estate. That does not solve the issue of how one would demonstrate that future investment and rationalisational proposals are dealt with equitably. It may be a necessity, but it is not a sufficiency. The ESA will still face the issue that we have now. There are perceptions that one sector does better than another, that investment is not fairly targeted, and that disposals are not recycled properly. Those issues will simply not disappear, which is why we need a process built round area-based planning to take a proper, more deterministic way to meet need and to channel investment. Those are building blocks, but they do not deal with the core issue. The issues of whether there is a controlled estate body, whether the ESA owns it, where future investment goes, and what the pattern of schools will be, still need to be determined. That is why we are looking to area-based planning as the keystone to deal with those issues. There are perceptions, Basil, but they work both ways.

1109. Mr B McCrea: In my attempt to be helpful and to show you where my representations come from, I must state that there is a hierarchy of needs. The process and the mechanism for deciding how to manage capital, for example, is two or three levels down; whereas the need to be treated fairly and equally — and the perception that one is being treated fairly — is at the highest level. If those levels are not right, all else fails. It does not matter how good the rules and processes are, if people think that they are working agin them, we have a problem.

1110. I am sorry if I am being unhelpful, but your paper does not address the perceived inequality and sense of hurt of the TRC and others about how their estate is being handled compared to other estates. It is a serious issue. I am sorry to be the harbinger of bad news.

1111. Mr Stewart: It is not at all unhelpful. We continue to talk to the TRC and others, and we register their concern. We want to continue to engage with them, and we are happy to consider suggestions or ideas. This is a paper for consultation to which they may wish to contribute in order to attempt to address those issues.

1112. We are conscious of the various perceptions and we take them seriously. Common to them all is that we have had an adversarial and competitive approach to the planning and delivery of the educational estate. In the case of winners or losers — or perceived winners or losers — the pattern of perception varies from time to time. The core of our policy is that we absolutely must move away from that. No sector or group of schools must perceive itself to be part of anything other than a fair, open and transparent process that is based on need. That is why we continue to place area-based planning at the centre.

1113. Mr McGrath: To reflect on previous discussions, we recognise that many controlled schools — perhaps controlled grammar schools — feel that the current arrangements have them operating in a command-and-control system when compared to their peers in other sectors. The arrangement that we propose is precisely to enable them to be more liberated and to have greater control of their destiny.

1114. We spoke previously about the aspirations of Ballyclare grammar or any other school — we must find another example, because it is unfair to keep singling out Ballyclare.

1115. The Chairperson: I am sure that you will have no difficulty there.

1116. Mr McGrath: Absolutely. You have referred to the aspirations of schools to move to greater autonomy, and Chris talked about the long-term vision. We want to create the capacity in these provisions for some of those controlled schools to migrate along a path where they might eventually own their own estate akin to the status of voluntary grammar schools. It would be a move towards greater autonomy. We recognise that, and Basil’s points are well made. We can deal with facts, but dealing with perceptions is more complex. That is one of the issues that we have to deal with.

1117. Mr B McCrea: There may be some mileage in fleshing out a route map for how the long-term vision might happen.

1118. Mr McGrath: Part of our thinking about autonomy was how schools could take ownership of their assets.

1119. Mr B McCrea: That is worth exploring.

1120. Mr Stewart: We may have undersold that notion in the paper and tried to sound cautious about it. I hope that we did not give the impression that we are reluctant to go down that path; it was simply an attempt to reflect the fact that, particularly in the controlled sector, one size does not fit all. Many schools in the controlled sector would be glad to go down that route as quickly as possible; others are unwilling to do that, as they quite happy with the present arrangements. Both positions are legitimate, and we want to allow space for both approaches in the policy that we develop.

1121. The Chairperson: We may return to that. Do you have a question, Michelle?

1122. Miss McIlveen: Oh, thank you. I did not think that I was going to be called so quickly.

1123. The Chairperson: Pay attention, please. Thank you. [Laughter.]

1124. Miss McIlveen: A couple of weeks ago, you discussed appointments to the working group. However, I do not remember your outlining the education and library boards’ role of nominating members.

1125. Mr McGrath: Are you referring to appointments to the working group that will conduct some initial work on the controlled sector support group?

1126. Miss McIlveen: Yes.

1127. Mr McGrath: The Department is seeking a group of interested individuals. That does not necessarily exclude board members of education and library boards or officials, given that many people may be making a career move and may not be interested in membership of that group. It is not a representation, because it will not be a statutory body; we are seeking volunteerism as opposed to statutory representation.

1128. Miss McIlveen: If you are appointing, nominating or, in this instance, shoulder-tapping to appoint members, I am concerned that when that body is established, its membership will decide who is on the board. Furthermore, there is a possibility of appointing joint chairpersons to the ownership board.

1129. Point 26 states:

“DE should have the right to appoint the members of the ownership organisation in accordance with OCPANI principles;"

1130. Can you expand on that?

1131. Mr Stewart: In the interest of creating a coherent approach for the controlled sector, it is desirable at least to explore the scope for linking a few bodies. We will have to explore the extent to which the law and guidelines from the Commissioner for Public Appointments allow us to link those bodies. The ownership body must be a statutory non-departmental public body whose membership is appointed according to OCPANI rules with uppermost regard to the principle of merit.

1132. By contrast, the representative body will be a non-statutory body that will essentially determine its own governance and appointment arrangements, although the Department will have to agree to those arrangements. At the moment, I cannot explain in detail to what extent we can legitimately ensure an overlap or commonality of membership; however, the concept is worth exploring and would be beneficial. However, we will be constrained by the law.

1133. Miss McIlveen: I am concerned that the Department might use a heavy hand. We will have to consider that matter.

1134. Mr Stewart: The Department’s hand will be supporting.

1135. Miss McIlveen: That remains to be seen. Point 29 refers to VAT exemptions. When will you have that information? There is a huge cost of up to £700,000 a year to a school that has been built under PPP arrangements over the 25-year life of the contract.

1136. Mr Stewart: I will check that and come back to you. My colleague in the finance directorate Catherine Daly is actively pursuing that matter with the Department of Finance and Personnel. I do not know when we will receive an answer. We recognise the urgency of getting a response, and the outcome will be significant. We know the answer that we want, and we are emphasising to our colleagues the need to give us that answer.

1137. Miss McIlveen: We need that information. If we are conducting a spend-to-save for the ESA, there is another cost of which we have not been made aware.

1138. The Chairperson: Does DFP have the power to authorise VAT exemptions?

1139. Mr Stewart: No; DFP will take that issue up with the Treasury.

1140. The Chairperson: It is a Treasury issue. What if the Treasury says no? We have had difficulties in the past with VAT, and the controlled sector now faces an additional cost of £700,000 a year; that would be huge. Is that matter being pursued?

1141. Mr Stewart: Yes. If it became a reality, its effect would be profound. However, at this stage, our assessment of the likelihood of the risk is low. We hope to convince our colleagues in the Treasury — through DFP — that it constitutes, essentially, a technical transfer of assets among public authorities. That should not attract VAT or significant land registry fees; it would not be a sensible approach.

1142. The Chairperson: Has a business case been prepared?

1143. Mr Stewart: I am sure that that issue will be included in the development of the full business case for the RPA.

1144. Mr McGrath: The Treasury or, specifically, HM Revenue and Customs will rule on that matter. As the paper states, we sought confirmation that the ESA will have VAT exemption in the same way that education and library boards do.

1145. The test is pointing out to HMRC that it classifies those bodies according to a GB model. We have to point out that whereas local authorities run education in GB, the ESA and the education and library boards are the Northern Ireland equivalents and should be treated in the same way. The process is one of articulation and explanation. It is not necessarily swift, but we hope that it will be resolved satisfactorily; if not, significant issues will arise: we will have to ask whether the benefits of the body are sufficient to justify the significant cost that will fall on the education budget. I do not think that that cost would penalise controlled schools; the education budget would have to bear it on a broad back, and that is unpalatable. When we get the numbers sorted out and some progress made, we will inform the Committee. The issue will have a bearing on whether we want to follow this through to a conclusion.

1146. The Chairperson: Do we know whether DFP accepts the merits of the case? Has the Department of Education to convince DFP or draw up a business case for an exemption; or is the Department seeking VAT exemption for the ESA? Has the Department asked DFP for exemption, putting the onus on DFP to put the case in conjunction with it? DFP would then negotiate with HMRC and explain to it why the VAT exemption is necessary.

1147. Mr McGrath: That is the process. When such issues arise, and they often do, DFP tends to support the Department. The decisions are not in DFP’s gift; it is the conduit.

1148. Catherine will be here shortly, and she will give the Committee an update.

1149. Mr D Bradley: The situation that you outline in the paper is one where a school’s ownership body may be little more than a repository of the deeds; at other end of the scale, new voluntary schools could emerge. Point 20 reads:

“A possible long-term vision for the sector is one where the capacity of the staff and the governors of the majority of schools is developed to the point where the Board of Governors in each school is able and willing to become the legal owner of the school, thereby increasing the vested interest in the school."

1150. You said that that would lead to truly locally owned schools. Is that not a recipe for the break-up or fragmentation of the controlled sector? Would it not become more difficult to area-plan for that sector? Does that not defeat the point of having a unified organisation?

1151. Mr McGrath: The controlled sector is very diverse; in a sense, the only common theme that links those schools is that they are controlled; they include inner-city, rural, grammar and non-grammar schools. Previously in the Committee, we discussed the different aspirations of schools in the sector. I am not sure that trying to maintain rigidity about the sector formerly known as controlled is an objective.

1152. We want to promote as much autonomy as possible among schools in future. Some schools might see greater autonomy as a migration route towards control over their own affairs and ownership of their own estate. That would be a critical test, not just something that we would hand over willy-nilly. However, we would not regard it as inimical. Area-based planning will still be about determining the educational needs of an area and planning to meet them. Sector support groups will have an input to that, but they will not have a monopoly of wisdom or input to the process.

1153. The ESA will therefore be set up largely to deal with an element of the perceptions that exist. Neither my Minister nor I would regard it as a problem if the controlled sector shrank over time. If some schools took ownership of their own estate, it would gradually become redundant — rather like the “Carlsberg complaints department." I would regard that as a positive rather than a negative.

1154. I am not sure that preserving the controlled sector in aspic is a positive aspiration. Instead, we should encourage the various sectors to migrate to different places in future so that boundaries break down. Over time, the mix of sector-support groups may need to be redefined because schools have repositioned themselves.

1155. Mr D Bradley: I was going to make that point. If that sector becomes so fragmented, it will be very difficult for a sector-support body to represent the sector’s interests.

1156. Mr McGrath: That is a fair point, Dominic.

1157. Mr D Bradley: One could go one step further and question the point of the ESA.

1158. Mr McGrath: We have to work from where we are. We are talking about long-term migration — it may take some time for schools to move. We need a sector-support group because of the others that are in place. Not having a group will add to the sense of prejudice and inequality that Basil articulated.

1159. Over time, the sector could break down into different sub-sectors, such as an inner-city sector, a rural sector or even a geographical span. We would not have a fundamental issue with that; neither, however, would we want over-fragmentation. In addition, we would not want to take any more money from the front line for sector support.

1160. Mr Stewart: As John said, Dominic correctly identified the risk; at the same time, however, if the only thing that links or binds those schools is shared details of their ownership, I am not certain that it would be a terribly coherent sector anyway. As Dominic rightly said, the real challenge is for the controlled schools’ representative body because it will play a significant role in the area-planning process; not the ownership body, which will have little or no role.

1161. Interestingly, one of the early responses that we received to the consultation on the paper was from a principal of a controlled integrated school, which has a very close association with the Northern Ireland Council for Integrated Education (NICIE). The principal asked whether the school will belong to the controlled sector or the integrated sector in future. Our response is that that school can belong to the sector of its choice, to both sectors or to neither.

1162. Mr D Bradley: OK.

1163. Mr McCausland: Equality is a key issue; we want to ensure that there is equality across the sectors and equality for all children. I am sure that nobody would want to enshrine or embed anything inequitable in the new proposal.

1164. Will you confirm that the proposals will ensure full equality among all the sectoral bodies, including the ownership body and the support body? In other words, will the ownership body have the same rights, role and authority as the trustees of Catholic schools?

1165. Mr Stewart: That is our aim. However, the phrasing of your question leads me to believe that you are about to point to some aspect that you think is sub-optimal.

1166. Mr McCausland: I just want to put this matter on the record. Are you assuring us that there is equality of role, status and powers?

1167. Mr Stewart: Yes.

1168. Mr McCausland: OK. That is reassuring.

1169. Returning to an issue that Michelle McIlveen raised, point 26 states that

“DE should have the right to appoint the members of the ownership organisation in accordance with OCPANI principles;"

1170. Do those principles apply to the membership of the trustees’ body?

1171. Mr McGrath: No; they do not.

1172. Mr McCausland: Therefore there is not equality.

1173. Mr McGrath: Those assets are owned by the state, and the ownership organisation will be a statutory body.

1174. Mr McCausland: I know that. However, there are two sectors; in one, the Church appoints the trustees; in the other, the Department appoints the trustees. Is that correct?

1175. Mr McGrath: Yes. Voluntary grammar schools will have their own arrangements for appointing the members of their boards of governors.

1176. Mr McCausland: I might address voluntary grammar schools later, but I am more concerned about controlled schools at the moment. The OCPANI principles generally apply to public bodies that cater for the entire community in Northern Ireland.

1177. Mr Stewart: As do all public bodies.

1178. Mr McCausland: Yes, but that body will deal with schools that cater for nearly the entire unionist community and small numbers from other communities — it does not cater for all of Northern Ireland.

1179. Mr McGrath: The body will own the estate of a number of schools that cater for the community that you described.

1180. Mr McCausland: Yes, it will deal with a sector that caters for those communities.

1181. Mr McGrath: It will own the estate.

1182. Mr McCausland: Yes, I know that. Therefore in one case the Catholic Church appoints trustees; in the other, there is a system of appointment to create an ownership body that could not be representative or reflective of the community that those schools serve.

1183. Mr McGrath: There is a difference in ownership status: controlled schools are owned by the state, so even as we speak —

1184. Mr McCausland: I know that there is inequality, but we want to get away from that.

1185. Mr McGrath: There is a difference in ownership — assets in public ownership are subject to certain standards of governance and accountability that do not necessarily apply to the assets of other bodies that, despite operating in the public sphere, are essentially private organisations. The Committee would not expect us to dilute those principles. We are saying that we will create an ownership body that will own substantive public assets.

1186. Mr McCausland: How will you get a body whose membership represents or reflects the community that is educated in those schools?

1187. Mr McGrath: That is a fair point. We have work to do to define the criteria for membership of the body. Some of those criteria will have to include technical skills, because the body will own a great deal of property. Criteria will have to be drawn up so that the membership of the body understands the ethos and background of the controlled sector and the communities that the controlled sector serves. Those criteria will have to be built in.

1188. The way to get an overlap of membership is for people to apply. Despite Michelle McIlveen’s remarks, people have to apply for public appointments — we do not just tap people on the shoulder. The criteria for membership of the body will have to have guidelines woven in that cater for the point that you make.

1189. Mr McCausland: The document is going out for consultation without such criteria.

1190. Mr McGrath: That is a fair point.

1191. Mr McCausland: That is unfortunate, because it is a fundamental issue. Will the powers and authorities of the new body be the same as those of the trustees in the Catholic-maintained sector?

1192. Mr McGrath: Yes.

1193. Mr McCausland: I am also interested in pathways for the future; it is a pity that the issue was not dealt with more fully in the document. Before we go too far down that road, I can think of areas in which there are schools that might want the establishment of a smaller trust.

1194. For instance, some schools might want to be part of a smaller system for reasons of ethos or religion; I would like to see much more about that, because I am concerned about the situation. As I said before, a controlled school can transform itself into an integrated school, but an integrated school cannot transform itself into a controlled school. Those issues are of significant concern to the unionist community, and they must be tied down before any Bills come before the Assembly and before decisions are made.

1195. Mr McGrath: That is a good idea. It is a fair point, and I will come back to it. This paper covers a great deal, and perhaps we should have delved more into the process of appointing members of the body. We might come back to that. However, I accept that it might have been useful to make some reference to it in the public consultation.

1196. The pathways are an emergent policy. There is a view that there should be accountable autonomy: schools should have as much autonomy as possible to determine how they will meet improving standards of outcomes for children. They may wish to do different things with regard to employing staff, and previously we talked about giving schools more scope over securing professional development. Another strand that is highlighted is that, over time, we should create the potential for a pathway for some schools in the controlled sector that might aspire to owning their own estate eventually.

1197. That would be a long-term plan, because a school’s board of governors would have to be of a sufficient calibre to take that step. There are issues about the calibre of boards of governors across the board; it is an evolution. We want to explain how we see that emerging and happening over time, and we must ensure that the provisions that we put in place will create the potential for those developments as opposed to closing off potential. We think that those issues will materialise in the next five to 10 years rather than in the next two or three. It is evolution rather than revolution.

1198. Mr McCausland: The legislation relating to the Equality Commission or the Human Rights Commission — or both — states that their membership must be reflective or representative of the community that they serve.

1199. Mr Stewart: It is the Human Rights Commission. It is an extremely problematic piece of legislation.

1200. Mr McCausland: That may be so, but there is a precedent.

1201. Mr Stewart: There is a precedent, but one must remember that it is Westminster legislation.

1202. Mr McCausland: It is good practice for a public body to reflect the community that it serves. In the case of the Human Rights Commission, it reflects the whole of Northern Ireland. In the case that I have identified, the community that the school is serving should be reflected in the membership.

1203. Mr Stewart: It is an issue that could be explored. My reference to its being Westminster legislation was to draw your attention to section 6 of the Northern Ireland Act 1998, which determines the legislative competence of the Assembly. We would have to make sure that any formulation of words was capable of getting through that.

1204. Careful thought needs to be given to the extent to which we would want such a body to reflect the composition of the community served by schools or reflect the composition of the community of Northern Ireland that will, potentially, be served by all those schools. Do we want to reinforce or underpin the existing composition of the controlled-schools sector or not? I offer that as a question.

1205. John Mr McGrath said that that is not the only, or most important, factor, to be considered in arriving at the criteria for the membership of the ESA. Its role will be different from that of the representative body; its role, as Dominic said, is narrow and technical and centres on the stewardship of public assets that are worth £2·3 billion.

1206. The skills and competencies required for the stewardship of public assets worth £2·3 billion will be high on the list of criteria.

1207. Mr McCausland: I entirely agree with you regarding the competencies. However, on your previous question about a or b, I know which one I expect; that is an equality issue that you simply cannot avoid.

1208. Mr McGrath: It is an important point and, as Chris said, we must explore the extent to which certain things should be specified. It would also be appropriate to look for people who have an understanding of issues concerning the controlled sector, such as perception, which Basil mentioned. Those people do not necessarily have to be from a particular religious group; they could simply have the required knowledge and experience.

1209. It may be someone who has a good understanding that the controlled sector’s perceptions are real; however, it should not be a question of representation over understanding, experience and talent. Merit is central to all public appointments, and those appointed must be capable of doing the job that they are charged to do.

1210. Mr McCausland: My point, which I will not labour any further, is simply that people with skills of the highest calibre who can do the job should be appointed. It would be madness to give an insufficiently skilled body ownership of a stock of such high-value buildings. I have no doubt that there will be plenty of people with the necessary skills to choose from.

1211. However, in order to gain the confidence of the broad unionist community, and other communities whose children attend controlled schools, it is important that membership of the body is reflective and representative; and I emphasise those words. I may be able to understand many of the relevant issues, but it would be extremely impertinent for me to say that I could be representative.

1212. Mr Stewart: Nelson and other members expressed an interest in hearing more about the potential pathway for development. We have touched on several aspects in recent weeks that come under the broad umbrella of accountable autonomy. If the Committee would find it helpful, we will produce a paper to draw together some of those strands, including ownership, governance, our role in employment arrangements, and where we see the potential for greater autonomy.

1213. The Chairperson: The problem is that a paper has gone out for public consultation that alludes to but which does not address the issues that the Committee flagged up to the Department in January. It is not perceived inequality; it is inequality. I appreciate why someone in your position will say that it is perceived inequality, but it is inequality, and there will be serious implications if it is not addressed. The paper you suggest providing for the Committee, and the paper before us now, will be useful in teasing that out.

1214. Mrs O’Neill: The question that I was going to ask has, in effect, been answered. There needs to be a balance between stakeholders’ legitimate concerns and the associated costs. There seems to be a grey area concerning VAT, stamp duty and land-registry fees. At a time when budgets are stretched, we need know where we are going on this issue; I hope that we can get that information as soon as possible.

1215. The two-step transfer process is a massive upheaval for staff, who will have to move from education and library boards to the ESA and then to a new body.

1216. Mr McGrath

1217. A small number of staff will be affected; it will not be huge.

1218. Mr Stewart: The VAT issue is important. There is a further important point to make in order that we do not inadvertently mislead the Committee. The issue of VAT exemption first arose when the intention to establish the ESA was announced. The Treasury and HMRC will decide whether the VAT exemption that applies to the education and library boards will be carried forward to the ESA. It is inconceivable that its decision on any new body that takes ownership of controlled schools would differ from its decision on the ESA. In that sense, therefore, that part of the policy decision will not be affected. The decision of the Treasury and HMRC on VAT exemption will be good or bad, regardless of whether controlled schools are under separate ownership or under the ownership of the ESA.

1219. The land registry fees are a different matter that could, of course, be affected by the number of transfers that will have to take place.

1220. Mrs O’Neill: What about stamp duty?

1221. Mr Stewart: The same applies to stamp duty.

1222. The Chairperson: I would like clarification on the use of the word “pluralist" in paragraph 8:

“It is recognised that the education sector here remains pluralist."

1223. Are you referring to the controlled sector or to education in general as pluralist? Exactly what is meant by that?

1224. Mr Stewart: In the context of the sentence, pluralist refers to education generally and the fact that we continue to have sectors and schools of differing ethos and character. It is also true, although it is not implied in the sentence, that the controlled sector is perhaps more pluralist than the other sectors.

1225. The Chairperson: It is interesting to compare how the outlined purpose of the ESA stacks up with the Bill, which defines the general duties of the ESA in clause 2(2)(a):

“to contribute towards the spiritual, moral, cultural, social, intellectual and physical development".

1226. If every sector is pluralist, how can that be done?

1227. Mr Stewart: I am not sure that I understand the tension between the two.

1228. The Chairperson: Perhaps there is no tension; we will come back to that at another stage. I think that there is a contradiction between the two.

1229. Mr Stewart: You will have to assist me, Chairperson; I am afraid that I cannot see any contradiction.

1230. The Chairperson: I will return to that issue.

1231. Mr McCausland: It is unfortunate that the consultation process is under way without there being any clarity on those issues. In a sense, you are asking questions of people who do not have the necessary information to be able to answer them. That devalues the consultation, and it perhaps suggests to some people that the Department has not picked up on the public’s basic concerns. The issues that we are articulating today mirror the concerns of many in our community.

1232. Mr Stewart: I take your point. The consultation process is similar to dipping a toe in the water, and it is important to do that. A tension always exists between early consultation to ascertain the views of stakeholders and a later consultation when the proposals have been progressed to such an extent that the opportunity to influence them may have gone.

1233. The current consultation is not a question of take it or leave it; the Department wants to hear, reflect on and respond to stakeholders’ views. After reflection and drawing conclusions from the points that are raised during consultation, that response may be in the form of a more definitive policy proposal. I assure the Committee that the concerns raised during the consultation process will not be overlooked.

1234. The Chairperson: What is the next stage of the process? Will there be further consultation on finalised or emerging proposals?

1235. Mr Stewart: We will reflect on that in light of the available timescales. I am conscious of the fact that, from a pragmatic perspective, the Committee wants to see detailed proposals as quickly as possible. We will certainly bring back to the Committee and make available to stakeholders an analysis of the consultation responses received and what we propose to do with them.

1236. Miss McIlveen: Does that mean that none of those working groups will be set up until after the consultation has been completed?

1237. Mr McGrath: No; we want to proceed apace with that.

1238. Miss McIlveen: It says so in the consultation paper.

1239. Mr McGrath: No; this is a consultation with the ownership body — the sector support. There is an urgent need to make progress on that, and we want to get on with it.

1240. Mr Stewart: We are consulting on the paper. However, given the urgency, there are steps that we can take now without prejudicing the outcome of the consultation — we can gather ideas and suggestions as to which shoulders we might tap for the initial group without constraining what that group might do. However, that might change as a result of what comes back from the consultation.

1241. The Chairperson: Thank you very much, John and Chris.

11 February 2009

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

Witnesses:

Mr Tom Flynn
Mr John McGrath
Mr Eugene Rooney
Mr Chris Stewart

 

Department of Education

1242. The Chairperson (Mr Storey): I welcome John McGrath, Chris Stewart, Eugene Rooney and Tom Flynn. Good morning, gentlemen. I remind members that this session is being covered by Hansard because it forms part of the scrutiny of the Education Bill.

1243. Today we will consider area-based planning, on which I am sure that members will have concerns and questions. I will ask John to speak to the Committee first.

1244. Mr John McGrath (Department of Education): Thank you, Chairman. We are grateful for the opportunity to be here on a Wednesday morning yet again to discuss area-based planning and to deal with the Committee’s queries. We have distributed papers to the Committee on the recent public consultation exercise on the draft policy paper on area-based planning; the paper identifies issues that were raised in the consultation. We have also distributed responses to the issues that Committee members raised on the draft policy as set out in the letter from the Committee Clerk dated 16 January. I propose to outline the key points in the papers before we take any questions.

1245. The rationale for area-based planning is set out in the policy paper. Fundamentally, it is about introducing a much more strategic planning process into the education service to ensure that children and young people can access and benefit from provision that best meets their needs and which makes the best use of resources. The objective is to bring better cohesion, consistency and co-ordination into planning in order to address the weaknesses that are increasingly evident in the current bottom-up system. The aim is to have much better alignment of provision to overall integrated needs.

1246. The policy paper went out to consultation last year. We received 34 written submissions, and colleagues met key stakeholders in the education sector.

1247. The list of respondents is included in the paper that was made available to the Committee. The consultation responses were broadly positive towards our approach, particularly the education and skills authority’s (ESA) having the lead responsibility for producing area plans, and also for the concept that area plans should, over time, cover a wide range of provision, including pre-school, primary, post-primary and youth provision.

1248. Some of the issues that were raised during the consultation are identified in the Committee’s briefing, and some relate to matters that the Committee raised previously. I will briefly deal with those in the order that is set out in appendix 3 of the briefing. The comments will be considered by the Minister, and our intention is that a revised draft policy paper that reflects her views will subsequently be issued to the Committee.

1249. A recurring theme in the responses was the roles and responsibilities of key stakeholders, and the Committee raised that issue in previous discussions. The consultation responses mainly concerned the respective roles of the ESA and the various sectoral interests of the schools. Some of the sectoral interests argued that they should have a more elevated role, while others sought further clarification on the policy statement. In addition, some felt that there should be no erosion of the envisaged role of the ESA, and others simply sought clarification of their involvement in the process.

1250. In consideration with the Minister, we aim to clarify roles in the review when we update and revise the policy paper. The review will stick to the core principle that the ESA will have the lead and the statutory role in producing draft area plans, including how the various interests can bring their influence to bear on the ESA in the production of those plans so that the process is as inclusive as possible.

1251. As well as setting policy and overall budgets, the Department will have a challenge-and-approve role in the area-planning process, including area plans and strategic investment plans. Under the review of public administration (RPA) changes, the ESA will have the statutory duty to produce area plans, and, as far as possible, it should seek agreement from stakeholders about the proposals in the plans. When the ESA cannot achieve such consensus, it should detail those issues in its submission to the Department. A lack of overall consensus is not necessarily a veto on the planning process.

1252. The Committee and some of the respondents raised the issue of community planning and its links with area-based planning. The Minister is keen that area-based planning links in with community planning as it develops under the RPA and local government; that will be reflected in the revised policy paper. That will clarify that the processes should link in with the proposed community planning model for the 11 new councils and that the ESA will have a duty to participate in the community planning process. Indeed, the Bain Report recommended that education planning should be related to planning in other areas; the advent of community planning is a mechanism to ensure that that happens.

1253. The Committee raised concerns about school sectoral consultations and development proposals in the period before area plans will be in place. As I said, under the RPA changes the ESA will have the statutory responsibility for putting in place area plans. In the interim, sector bodies may continue to undertake planning and consultation exercises within their own remits, but those will be superseded by the area plans. The existence of such proposals or plans in individual sectors will not be allowed to hamper the overall area-based planning process.

1254. Under existing legislation, the Department cannot prevent bodies and groups submitting development proposals. However, in advising on proposals, it takes into account the consistency of the proposal with the anticipated need for provision in an area. When area plans are in place, the draft policy paper points out that only those proposals that are consistent with the plan will be taken forward, and that there will be opportunities for sectors and groups to raise their proposals with the ESA as area plans are developed and reviewed.

1255. The Committee also raised the issue of club bank and area-based planning.

1256. When area plans are in place throughout the region, club-bank style arrangements should not be required because all schemes that have been approved as part of the planning process should have been appropriately funded from the outset. Some legacy schemes may still be operating at the beginning of the process, but the need for loans should diminish and become redundant as each of those schemes is completed.

1257. The Committee asked for an update on the post-primary exercise, concentrating on the entitlement framework. The framework is detailed in the briefing paper, and the exercise has a dedicated website, so I shall only select some of the highlights.

1258. The exercise sought submissions from interested parties, and 76 submissions, which are now being considered by the area groups, were received by the closing date at the end of last month. The central group has met on four occasions; it is due to meet again on 19 February 2009. Each area group has met several times, and all the groups meet in a forum.

1259. On 27 October 2008, the central group submitted an interim report to the Minister that highlighted all instances of positive engagement by sectors. A progress report from the central group is due to be with the Minister at the end of this month, and the group’s initial regional review report is due in May.

1260. Those are the substantive issues with respect to the current position. The next step will be to complete responses to all the matters that were raised during the consultation process and, in consultation with the Minister, to complete the revised policy paper. At that stage, we will bring the revised policy paper to the Committee.

1261. Although the drafting of the second Bill will be based on that agreed policy, we are keen to hear the Committee’s opinions and answer questions about the present state of work. Therefore, we stand ready to deal with any queries that members might wish to raise.

1262. The Chairperson: Thank you, John. The timescale of events concerning this matter and the way in which announcements were made are bewildering. In March and December 2008 the Minister made statements in the House setting out the work of the central group; we then had to wait to get the terms of reference. Eventually, the central group and the subgroups were up and running. How does that series of events fit in with implementing a final, full area plan, and, given that the entitlement framework is supposed to come together in 2013, is the Department planning to introduce any interim arrangements from 2010?

1263. I worry to hear you talk about a report coming out in May, as the central group has sent work back to the Department. What is the present situation, and, in light of the new statistics that have been gathered, how does the work on the area plan sit with the development proposals, about which we have been haranguing Eugene for weeks and months? We want to see progress on new builds; we want to see schools in place. What work is being done to bring all those factors together so that we do not end up in the same position as we did in the past on other matters? The process has been like a patchwork quilt with no joined-up approach.

1264. Mr McGrath: I was afraid that you would begin with such a complex question.

1265. The Chairperson: I am glad to fulfil your expectations.

1266. Mr McGrath: I said that I was afraid. [Laughter.] There are several strands involved. The post-primary entitlement framework is, in a sense, being taken forward as a non-statutory exercise, reflecting several matters that must be dealt with. Furthermore, that work will prepare the ground in the education service for the various sectors, informing them about the types of approach, behaviours and expectations that area-based planning will involve. Consequently, the work has taken longer than expected to reach this stage.

1267. This is the first time that such work has been undertaken in the education sector, and during the process significant lessons have been learned about what the various sectors can expect and about whether and on what basis they will participate. It has taken some time to get the process to where it is now, but much has been learned that will be relevant for the future. Any process can be technocratic and mechanistic; however, the behaviour and motives of the players in the process are equally important.

1268. It is a valuable introduction to the discipline and behaviour that a more strategic approach to planning will bring to the education sector; whereas, to date, there has been a locally based, bottom-up micro-system with no overview. That work is continuing and will provide a valuable back-drop.

1269. However, it is not a statutory basis for area-based planning; that will be in the second Bill, and the ESA will have the responsibility of putting in place a series of area-based plans that should, over time, cover the entire region. However, it will, undoubtedly, take time for a full set of area plans, covering not only school services but early-years and youth services, because we are moving from one spectrum to another. There will be a migration from where we are now, and we will have to work carefully to fine-tune the process of moving to the implementation of area-based plans.

1270. The determination of which plans should be initiated in the early days, as opposed to later, depends on various factors. Judgements will have to be made on whether there is stability of provision and whether there is consensus on that provision and whether there is a balance between provision and need. If the answer is yes, the judgement may be that a full area-based plan would not be needed until later.

1271. In some areas, and I am sure that we can think of some, there may be pressing issues about the state of investment or the imbalance between provision and need, or perhaps several proposals or issues about rationalisation need to be dealt with. The ESA should immediately identify those areas that require early work on area-based plans. The process of migration means that it will be some time after 2010 before the full pattern of area-based plans is complete.

1272. The Chairperson: The difficulty, John, is that the patchwork quilt will grow over coming years because if we allow sectors and organisations to continue to do what they have always done, which is to work within the parameters of their own legally defined silos, will we ever reach the point of completion?

1273. Some of us may question the need for the ESA. The probable rationale of the Department is that the ESA is required precisely because, to date, everyone has worked within their own legislative frameworks. Those frameworks have defined what they have been able to do, and that has not always reflected what is happening in other sectors. Realistically, however, that behaviour will continue for several years to come.

1274. Mr McGrath: It is recognised that a much more strategic approach to planning is required in the education sector. Even if the ESA were not to provide that, the consensus is that discipline must be introduced. Given that we are moving from a localised, bottom-up approach, which, in many cases, is based on provision rather than need and in which the providers are the drivers, it will be a long migration.

1275. However, we do not want a free for all to apply until there is almost a complete set of area plans; we want to prioritise where area plans should be put in place at an early date. That would put a stop to the diverse range of thoughts and proposals and provide a context in which to bring all of them together in one framework.

1276. We have an idea of the direction that we want to take in the various areas. There will, therefore, be a much heightened scrutiny of any proposals, and they will be set against the overall strategic context. At present, we cannot stop development proposals being made, and they must be considered and approved — or not; however, there is no automatic assumption that a development proposal must be agreed. Eugene may wish to add a few words because, to date, he has more scars on his back from development proposals than I have.

1277. We will want to look at that in context in order to address the perception that various interests may try to bring forward proposals in order to get them over the line before area-based planning is introduced. We must be very careful about that, because those plans will trigger decisions about capital investment for the next 25 to 30 years. Strategic decisions must be made in the right context; we cannot be bounced into making misguided decisions after a bit of strategic reflection.

1278. Mr Eugene Rooney (Department of Education): John has covered the points that are central to the ESA’s role in planning. The ESA will be taking over completed and partly completed work; it will be aware of investment proposals; it will take forward investment projects; it will have information, not least from the central planning group, whose work on how areas might be configured is due to be completed this year; and it will provide advice and analysis on development proposals. It will be two to three years before the ESA starts to make a significant contribution to putting all that together and in challenging plans that do not fit. From day one, areas that need to be looked at, proposals, and the existing investment programme that it will inherit, will be a priority for the ESA.

1279. The central planning group is unique in bringing together the different sectors to look at issues on an area level, and the five area groups are doing that at the moment. Valuable information will come out of those groups that can inform the process that the ESA is required to take up and deliver on. That material will be used to help to ensure that the planning process is as effective as it can be. It focuses primarily on post-primary schools, although, as John outlined, area planning covers primary, pre-primary and post-primary schools. That exercise will have an important input; however, the ESA will be expected to do much more.

1280. The Chairperson: John, you explained the issues that arose from the consultation. The Department anticipates that the revised policy paper will be available from the second week in March; it would be valuable for the Committee to see that. We would appreciate if you could come back then; this is an important area that must be resolved.

1281. Mr McGrath: Absolutely.

1282. The Chairperson: The Committee wants to understand exactly where the thinking is as we develop the details of the second Bill. On 4 March 2008, in her statement to the House about the timescale of post-primary area-based planning, the Minister of Education said that:

“This will be used to identify the structural change required for the delivery to every young person of election at 14 and the entitlement framework from 2013." — [Official Report, Vol 28, No 4, p186, col 1].

1283. Will area-based planning focus only on a young person’s election at 14; or, as many people would prefer, will it look at transfer at age 11 through to 19? It is not specific, and the concern is that area-based planning may be used for reasons other than considering the provision of need; the worry is that it may be used to change the debate around the transfer issue.

1284. Mr McGrath: The primary focus is on the entitlement framework. Some people think that area-based planning concerns only the physical estate, but the physical estate must reflect how the curriculum entitlement framework will be delivered. Area-based planning is not just about buildings, and that has been reflected in our language.

1285. The buildings flow from the pattern of services and the issues of critical mass and quality, not just bricks and mortar. We are likely to reflect that broader dimension to area-based planning in the revisions to the policy paper.

1286. Mr Tom Flynn (Department of Education): The exercise focuses on the 14 to 19 entitlement framework. Given the timescale, it also focuses on provision in the existing and planned estate; that is to say the projects that you have had details of from the investment delivery plan. We are talking about a short time.

1287. The post-primary exercise is submissions-based in that it elicits submissions from organisations and individuals. In that respect, it is not as broad or as pro-active an exercise as we would expect under full area-based planning with the ESA.

1288. The Chairperson: Is there any indication as to what the key elements in the Department’s revised policy paper would be following the consultation? Do you have any idea, at this stage, what would be put in place that would be different from the policy paper?

1289. Mr McGrath: First, we identified the issues that people raised; some people asked for clarification, so perhaps the paper is not entirely clear. One issue that we will emphasise is the relative roles of the ESA in area planning, and the various sectoral interests and sectoral support bodies. The latter represent their sector and provide their input, but the statutory responsibility — the responsibility for taking forward area planning — will rest with the ESA.

1290. The stakeholders, as in any public consultation exercise, will be the public at large, including, but not exclusively, sectoral interests. There are various issues that we want to clarify. Issues arise from area-based planning’s being about meeting overall education needs, and, through that, what the investment needs are, although it is not just about investment.

1291. There are issues about the mechanics of area planning groups in that we may have to examine who the key stakeholders are. At official level, we want to ensure that the advice that we submit reflects where we are now and some of the discussions that we have had with the Committee about how area-based planning fits with the role of sector groups.

1292. We spoke last week of the controlled estate body. There may be issues over whether it should have a role in the development proposals in future if no one else brings such proposals forward. There is an updating of thinking, but primarily it will concern the issues raised in the consultation paper. However, the discussion that we have started today is about where we will be on 1 January 2010 if we roll out area plans. The Committee will be interested in that. That may not be so much of an issue in the policy paper, but there is a query over how we move to the implementation of policy. I hope that when we come back to the Committee in March 2009, we will be able to fill in some of the gaps.

1293. Mr D Bradley: Good morning. Area-based planning will be an ongoing process because communities’ needs will evolve and change.

1294. A key element in that will be the sustainable schools policy. At the moment, there are six criteria by which the viability of schools is judged, and since no weighting is given any individual criterion, to all intents and purposes they are of equal value. How can you ensure that one area group does not value one criterion more highly than the rest, while another area group will value a different criterion more highly? How can you ensure even application of the policy across all areas?

1295. At the moment, we face an unregulated system. There will still be open enrolment at post-primary level, but we will not follow the policy envisaged by the Minister whereby most pupils will travel to their nearest local school. In order to area-plan, you must be able to contain pupils in an area; however, that will not be possible in an unregulated system. How can area-based planning operate in an unregulated system?

1296. We have already discussed my next point. The enrolment statistics of schools in Northern Ireland show that a huge number of small rural primary schools fail to meet the sustainability criterion of 105 pupils — some are well below it. Is that not a challenge? Should it not be included in your revised policy paper?

1297. A further point that I want to raise is related to the amalgamation of schools, although that may be Eugene Rooney’s area of expertise. Are there guidelines for amalgamation? Must amalgamating schools be of roughly similar size, give or take, say, 50 or 80 pupils? Will the sustainable schools policy be incorporated into your revised policy paper?

1298. Mr McGrath: The sustainable schools policy has been published. In area-based planning, we expect it to set some of the parameters. It does not need to be reflected; it is part of the context.

1299. Mr D Bradley: Will it take into consideration my point about how the six criteria can be interpreted differently by each area?

1300. Mr McGrath: I was coming to that. In future, under the changes envisaged, the ESA will have a statutory role in area-based planning. It will have guidance from the Department and will be expected to adopt a common approach, guided by the entitlement framework, school improvement and the sustainable schools policy.

1301. Mr D Bradley: Does that mean that the ESA will give a certain weighting to each of the six criteria?

1302. Mr McGrath: We expect each area plan to take account of the various policy parameters, of which the sustainable schools policy is one. Each area will be expected to make judgements on the relative importance of the sustainable schools criteria and explain why, for example, the judgement in one case showed a greater bias towards size or quality than the judgement in another.

1303. Area-based planning will not be so mechanistic as to allow one to stick the numbers in at one end and collect an answer at the other. Judgements will have to be made about the size of schools. You mentioned small schools and the different criteria but, at the end of the day, the quality of the learning experience for children will be very high. The enrolment of a school may be below the figure set for a sustainable school, but the test of a school’s worth will be whether it can address the challenges — either through amalgamation or federation — that were raised about the quality of the learning experience.

1304. If it can meet the challenges, an ESA plan could envisage that a school could function below the threshold; if a school cannot, it might not be allowed to do so. Judgements will have to be made in different places. There will be a common policy approach, and when proposing an area plan, the ESA will be expected to explain the judgements that it makes in different circumstances. That is no different from any other major strategic-planning exercise.

1305. Mr D Bradley: Will that not be rather confusing for the public? A school with a low enrolment might remain open while one with a higher enrolment might close.

1306. Mr McGrath: Those things happen. Hypothetically, a school with a smaller enrolment could work in collaboration with nearby schools to deliver the entitlement framework and quality of learning; equally, a school with a higher enrolment might be geographically isolated or unwilling to work in collaboration and have poor results.

1307. My experience in the Health Service, in which there are always issues about viability and facilities, taught me that different solutions apply to different places because circumstances are different. Geography means that there are differences in what happens in Downpatrick, Omagh and Coleraine because one can factor in different solutions. There is no one-size-fits-all solution; however, issues of critical mass and quality must be examined.

1308. Mr D Bradley: I thought that one of the points of the ESA was to stop the irregularity of application of policy across the board.

1309. Mr McGrath: It is about how policy is applied. It is certainly not envisaged that we will have an almost entirely mechanistic system. The exact primary and post-primary configuration around Omagh will not be the same as that in Coleraine or Downpatrick. However, it is consistency of approach and rigour, and about explaining how the issues balance.

1310. Mr D Bradley: Do you not agree that the sustainable schools policy is such a key element in area-based planning that there should be at least some reference to it in your revised policy paper?

1311. Mr McGrath: It is a clear policy. We may set out in the guidance that area-based planning should include sustainable schools among the key policy parameters of which it must take account. Do not read this as a dilution of the proposal. Issues of critical mass in education — as in other sectors — will become sharper as time progresses. Therefore many messages about the sustainable schools policy will bite much more sharply in future than they do now.

1312. Schools may find solutions through collaboration between sectors; they should at least be given the opportunity to do so.

1313. Mr Rooney: Sustainable schools will be central to area-based planning. Before sustainable schools existed, sectors planned according to their own factors and criteria; there was no common approach. The sustainable-schools policy has set out six criteria that everyone can consider.

1314. They must be interpreted by considering local circumstances. There cannot be a mechanistic approach that states that every school in a rural area must be reviewed if its enrolment falls below the threshold of 105. The policy clarifies that the key objective is to ensure that the educational experience of children is paramount when considering the provision of the estate in an area and how the facilities that are provided meet the educational needs of children. That is a key element of the policy, and it will be a key element of area-based planning to ensure that children’s education is of the right standard and that they have access to the broad curriculum to which they are entitled.

1315. The individual criteria were not weighted. We considered that, but the Minister decided that the criteria should be applied with regard to local circumstances. One criterion was not put above another — they had to be considered together. The indicators are intended to help the education sector to identify where action is needed in areas to address issues that might arise in schools.

1316. The ESA will have a key role in ensuring consistency of application across the region, because it will draw up the draft area plans and consider issues of sustainability across the schools estate. That is a key element of the ESA’s work on area-based planning.

1317. The key issue with amalgamations is that when the options of how best to ensure an area’s educational needs are considered, it requires two or more schools to amalgamate to provide a viable solution. As a broad guide, we expect that the schools involved in an amalgamation would be broadly equal in size; that would be one of the initial factors to consider. That is not necessarily an absolute requirement for an amalgamation; there can be many different types of amalgamation.

1318. We consider whether an amalgamation will deliver an effective solution in an area, whether it will provide a sustainable solution and whether the educational needs of children will be met. There is no hard-and-fast rule on when an amalgamation should or should not apply, but we will consider whether it is viable.

1319. Mr D Bradley: My other question was whether area-based planning can operate in an unregulated system, given that children can leave their own area to attend schools in other areas.

1320. Mr McGrath: When running a sector such as education, which has a pivotal role and a large budget, it is a no-brainer that a strategic-planning discipline is needed. I do not wish to get into the detail of transfer to post-primary school, because that is not my forte; however, the taxpayer would expect a system of strategic planning no matter what arrangements are in place. Strategic planning is not in place, and not having it creates more challenges.

1321. At its heart, area-based planning is not based around particular policy considerations; it is designed to take a strategic look at the education estate in the light of the policies of the day. Some may make it more complicated; some may make it easier. What is needed is a strategic planning process that better shapes the nature and delivery of the service, reflects investment needs and gives confidence that the right investments are being made in the right places. It is a puzzle to me how the education sector has gone for so long without it.

1322. Mr D Bradley: I agree that area-based planning is needed, but it will be difficult —

1323. Mr McGrath: It will be challenging, and it is early days. It will take some time for area-based planning to bed in completely.

1324. Mr D Bradley: I question whether that is where the process should start. My other question was about small schools. Do you not agree that such a challenging issue should be incorporated into your revised policy paper with specific guidance?

1325. Mr McGrath: The policy paper is for area-based planning, which will govern the legislation; it will not get down to the detail of individual or perhaps local guidance, depending on the circumstance. For example, it may be more relevant to rural than to urban areas, although not exclusively so. It is an important issue, but it may be further down the implementation path when it features in guidance.

1326. Mr Flynn: There are two sides to the issue. In a sense, area-based planning is about identifying a need and the solutions to it; that is where the solution of sustainable schools comes in on the supply side. If the issues are considered from an area basis rather than from a facility basis, some of the risk of local enrolment is being pooled. If an area is large enough, more of the movements will be internalised and more of the flows of pupils will be captured.

1327. Area-based planning is about delivering policies, a key one of which is sustainable schools. There is a balancing act, as planning challenges are thrown up by some of the policies. It is not meant to be a centralised, autocratic system of supply provision; it must allow policies to interact. My preference is to avoid singling out an individual strand in the policy paper for area-based planning, because it is about the delivery of a range of policies.

1328. The issue of thresholds and enrolments is a subset of one criterion of sustainable schools, but it is something that people pick up on; however, as John said, it was never intended to apply the policy mechanistically. The fact that it is about the range of policies as well as sustainable schools means that there must be flexibility in application at the facility level. The key point of area-based planning is its focus on determining need at an area level.

1329. I do not know whether that answers your questions, but it is an attempt to do so.

1330. Mr D Bradley: Thank you.

1331. Mr Elliott: My point relates to a question that Dominic asked about smaller schools. It concerns me that area-based planning will be forced by capital spend and capital budget, particularly in rural areas of Northern Ireland, without having a more designed plan. Ultimately, pupil numbers will drive that process. I think that Eugene said that the sustainable schools policy is central to area-based planning. I see that tied in to a policy that is driven more by those two aspects than being a feasible plan, particularly in rural areas.

1332. Mr McGrath: Small rural schools will face challenges in the future, and we must take those challenges into account when formulating a plan for them. In a sense, that confirms the point made by Dominic, and it will be an issue to address. Finding solutions in certain cases through greater co-operation or collaboration will be a challenge. With or without area-based planning, some small schools will face challenges; how those challenges are dealt with is the issue.

1333. Mr Rooney: When looking at small schools in an area-based planning context, one can plan so that they are viable and supported to deliver the education that is needed in an area; that will ensure that they are needed in the future. That is because the area-planning process should allow a complete view of how best to address the needs of an area, which may include a review of some schools and a decision that they are required in the long term and should be supported to maintain delivery.

1334. The present process is different — pupil numbers often dwindle, which increases pressure on schools, but there is no plan for whether the school is needed in the long term. As pupil numbers fall year on year, the school gets smaller, the pressures on teachers grow, but no proactive action is taken. That is what the area-planning process must change. It should identify all an area’s schools, its projected needs, and how those needs can best be addressed in the prevailing circumstances.

1335. It is a process of planning and management rather than of reacting to situations in which small schools face the challenges that they always have and always will. The question is how best to address those challenges once the circumstances of an area involved have been fully assessed.

1336. Mr Elliott: How will smaller schools be protected if their plans are not accepted by the ESA or the Department? That will cause friction. You may argue that smaller schools face challenges; however, the challenge for the Department of Education and the ESA is to work with them, and to date, the Department has, in many instances, not met that challenge. I would like the Department to adopt a much more open approach, which is a challenge that also faces the ESA.

1337. Mr McGrath: Tom makes some good points. Usually, events dictate what happens: small schools dwindle and may close, and the resulting pattern is dictated by happenstance. We always talk about particular primary schools, but, in area planning the approach is based on how to meet the needs of primary-school children in a specific area for the next 25 years. Tom is right that the Department must come up with a plan that is more strategic and proactive than simply waiting to see what happens and devil take the hindmost, or, as may happen in many cases, only the strongest will survive. That will present a challenge to the ESA, but all those involved must acknowledge that since the present pattern will not survive, a new one must be determined — as opposed to the winner being the last one standing. The ESA’s challenge is to ensure that it meets, rather than ducks out of meeting, educational need.

1338. Mr Elliott: To return to Dominic’s point, I know that the Department cannot permit too many inconsistencies, but one size does not fit all in the Province. I am keen to receive an assurance that guidance will be provided to ensure that that will not happen and that there will be flexibility.

1339. Mr McGrath: There will be local flexibility. The challenges will be to deliver choice and equality of learning. A solution that works in Fermanagh may not work elsewhere, but there must be scope for devising a local solution. If there is a diversity of approach, the test for the ESA will be to explain why something that worked in place X would not work in place Y; local communities deserve to know why that should be the case. Collaboration and the sharing of resources may result in a local solution being successful in one area. However, it may not work elsewhere because such arrangements were not possible, people were not willing to collaborate or the distances between schools were too great. One solution does not fit all, particularly for very localised issues.

1340. The Chairperson: John, at this stage, the devil is in the detail. To follow on from the points made by Tom and Dominic, several factors will determine the decision that is ultimately taken on a school. First, there is an issue about the trustees and ownership, and there is a long way to go on that in the controlled sector. The trustees have no statutory responsibility for development proposals.

1341. Take into account all that you and Eugene said about flexibility and consider the longstanding viability of a particular school. What happens if, in an area context, the ESA makes a determination and submits a development proposal stating that it can provide for the needs in the area by closing that school? As everything is set in the context of sustainable schools and, particularly in the case of post-primary schools, the entitlement framework, ultimately the ESA would have the power to close that school. Neither the school’s board of governors nor the trustees could do anything about it.

1342. That differs slightly from the present situation. Members know of schools that have amalgamated and are still not viable but which continue to existence; yet the Department cannot get some sectors to acknowledge that, ultimately, a particular school should close.

1343. Is that the key difference between where we are and where we will be?

1344. Mr McGrath: I hesitate to link that to a specific sector.

1345. The Chairperson: I did not name the sector, so you cannot accuse me of doing so. I did not cite a school or sector; I spoke in generic terms, so you can use the same protection.

1346. Mr McGrath: I defer to your wisdom. You will want the education and skills authority to have a role; it will consult on and debate an area plan before bringing its proposals to the Department. If those proposals are approved, the ESA envisages our investment proposals being guided by a decision to change the pattern for a particular provision, such as the primary-school sector, for example.

1347. As you said, rationalisation is not unknown in certain sectors at different paces in different places; the issue is about the quality of learning and the viability of critical mass. The Department or the ESA will not invent those: they already exist. We will want the force of a plan that has statutory effect to provide more of a catalyst to make changes.

1348. The Chairperson: Will an unregulated system be open to litigation? We hear various assertions about what could happen in the post-11-plus era. Is the argument the same for area plans? Could a school’s trustees legally challenge an area plan or development proposal if they did not agree with the closure of their school?

1349. Mr McGrath: Anyone has a right to go to court on any matter. Ultimately, schools rely on taxpayers’ money. If a rational piece of work suggests that a school should not have a future and should not be provided for, we would expect that to bite.

1350. Mr Chris Stewart (Department of Education): As John said, area-based planning will work best if it works on consensus. I reassure you that differences in ownership will not be an impediment. As the legislation stands, any grant-aided school can be closed by means of a development proposal, and the owners of that school cannot block it.

1351. The Chairperson: I appreciate that clarification.

1352. Mr O’Dowd: Who speaks on behalf of the nursery-school sector in the area-based planning groups? I am thinking specifically of standalone units.

1353. Mr McGrath: The current work relates only to post-primary schools.

1354. Mr O’Dowd: The review of public administration says that area plans should relate to areas covering the provision of, among others, nursery schools.

1355. Mr Flynn: That will be the case. Representation will need to be found for the nursery and pre-school sector in the area groups for area planning.

1356. The Chairperson: Therefore the focus is on post-primary schools at present.

1357. Mr McGrath: The non-statutory exercise is focused on the post-primary sector at present. In future, we want area planning to cover the spectrum of the services for which we are responsible.

1358. The Chairperson: Will that include youth services?

1359. Mr McGrath: Yes; we want area planning to cover everything from the early-years sector to youth services. In the early-years sector, there is a mix of nursery and pre-school provision and a mix of statutory and voluntary and community provision. That presents its challenges, as it is a much more diverse sector than the normal education sector. We will need the means to allow people to be represented. In that sector, there are issues about the differences in quality between pre-school provision and nursery provision, which the chief inspector highlighted in his recent report. An inclusive approach will be needed.

1360. In youth services there is also a mix of statutory and voluntary and community provision, and the number of providers is much broader and more diverse.

1361. The Chairperson: There are 11 organisations on the central group: the education and library boards; CCMS; the Irish-language lobby; the GBA; the Council for Integrated Education; trades unions; DETI; DEL; the Association of Northern Ireland Colleges; a representative from the Republic; and a representative from the ESA. One of the criticisms was that the make-up of groups — not just the central group, but the five subgroups too — was biased against the controlled sector, and I notice that that was picked up on in some of the other issues that arose from the consultation. Will that issue be addressed in the Department’s revised paper?

1362. Mr McGrath: The current exercise is non-statutory; the groups that are doing the work are made up of the providers of education. Under the RPA changes, the ESA will take the lead and do the work in consultation with the education providers; however, the ESA will be the executive body. The nature of area planning groups will be different from the present ones, and we will have to make sure that we get the right diversity. There must be a community input as distinct from the input of the education providers; it is important that the views of those who receive education are not lost. That is an issue that we will look at throughout our work, and to which we will return in light of the Minister’s views.

1363. Mr Poots: Paragraph 2 of the central group’s terms of reference states that:

“While the issues around transfer at 11 are not within the remit of this exercise, it will be important that the group’s proposals are consistent with any resolution reached."

1364. I am not sure whether a resolution has been reached. However, at least we are being realistic, as the Minister has recognised — in deeds if not in words — that academic selection will continue to be used by some schools and that there is nothing she can do about it. In that context, I assume that the work of the central group will be based on reality and not the Minister’s hopes?

1365. Mr McGrath: Those are the terms of reference for the groups and within them it is up to the groups to decide what they will do and how they will come back to us; there is no diktat on them.

1366. Mr Poots: The Minister has made many suggestions about what will happen and what she would like to see happen. There has been much talk about election at 14, but that has not been elaborated on. It appears to me that transfer at age 11 will continue; the only difference will be the privatisation of the test. Will the groups be guided by reality or by what the Minister wants?

1367. Mr McGrath: I cannot speak for the groups; they have their terms of reference, and they are made up of bodies that may have differing views on the issue. It is up to them how they address that, what they come back to the Minister with, and, as you say, whether or not that is deemed a resolution.

1368. Mr Poots: What advice are they getting, for example, on transferring to an alternative school at age 14? At present, that is not on the radar; there is little debate about pupils not in the Dickson Plan transferring again at age 14.

1369. Mr Flynn: The post-primary exercise is submissions-based; it elicits submissions from groups and individuals.

1370. The exercise will collate those submissions. We are not close to this exercise, because the central group will report to the Minister when it has brought all the submissions together. I cannot give detail on what it is doing at present; we have not seen it.

1371. Mr Poots: Is that linked to the estate?

1372. Mr Flynn: Their terms of reference focus on the delivery of the curriculum in the estate or on planned developments in the estate — those that have already been announced — given the time frame for the delivery of the entitlement framework.

1373. Mr Poots: If we move to election at 14, a huge rationalisation of the estate — and huge changes — will be required. If that is a reality — as opposed to a hope — the context in which the group operates will change. However, why should the group go down this route if it is only a hope? How would you operate now if you were a member of that group?

1374. Mr Flynn: I cannot speak for the sectors represented on the group; I will wait to see what they come up with.

1375. Mr Poots: These are confusing times.

1376. The Chairperson: We have been there before; no doubt, we will be there again. People are concerned that area-based planning will be used to get to a different point from where we are at present. We will be paying close attention to that. We will see whether it is used to drive through a policy on which there is not consensus. For instance, I see the arrangement regarding schools setting their own transfer tests as an interim measure, as, ultimately, everyone will have to agree on a proper transfer system into which everyone can buy. We are where we are until that is achieved.

1377. However, we must be careful that other measures of area planning are not used as a mechanism to try to get to the same destination.

1378. Miss McIlveen: Perhaps my question follows on from what Edwin said, but it relates to something that Mr McGrath said in his opening presentation. I got the impression that there might have been reluctance on the part of some sectors at the beginning of the process or that some people had difficulties with it. Have all sectors engaged fully? Were difficulties identified from the outset? If so, have they been resolved?

1379. Mr McGrath: As the current exercise is new, some sectors or interests required more clarification on what the opportunities were, and they wanted information on areas that they might have seen as threats before they signed up. It took some time before all participants came on board. Why, however, they felt like that is up to them, Michelle.

1380. Miss McIlveen: I will leave it at that.

1381. The Chairperson: The Committee raised concerns about club banks. Your paper states:

“Therefore, the need for Club bank loans should diminish and become redundant in time as existing schemes are completed."

1382. What progress has been made in getting to the stage where club banks become redundant?

1383. Mr McGrath: Previously, club-bank arrangements related to schools that had received approval but into which public capital investment could not be injected until they reached viability. Some schools bridged the interim period by club-bank arrangements. In future, greater rigour should be applied to ensure that schools are viable following an area plan; therefore public investment should be assured from the start. That is why I do not see a need for ad hoc arrangements in future. Some schools may be linked to such arrangements at present, but we do not envisage any further schools requiring recourse to the club-bank arrangements once the present ones have ended.

1384. Miss McIlveen: Does that mean that certain sectors will be unable to set up a Portakabin, put a sign outside it and call it a school? Will they have to go through a different process?

1385. Mr McGrath: At present, a school may be approved and receive revenue funding; however, no capital will be put in until it reaches certain viability thresholds. They have recourse to arrangements such as a club bank to expand the number of Portakabins and achieve those viability criteria. In future, planning arrangements will be more robust, and the Department will approve a school when it forms a judgement, on the basis of an ESA plan, that the school will meet those viability criteria. In those cases, we will inject public funds from the start, which could, in the early years, be used for Portakabins until a school achieves enough critical mass.

1386. Mr Rooney: That is the planned approach, and it does not prevent someone from setting up a Portakabin and creating a school that is not funded by the Department; a parents’ group can establish an independent school in a Portakabin. The role of the club bank is where a school has been approved and, in the early years, until it demonstrates long-term viability, recurrent funding is provided but not capital. The sector uses the club bank to provide capital for accommodation until a school has demonstrated long-term viability.

1387. How does the ESA link with the area-planning process? If a proposal for a new school has been analysed and approved at local level, the ESA will, in the early stages, be involved in accommodation matters. As John said, temporary accommodation could be provided until a school proves its viability. However, if an assessment is approved at the outset that a school is needed, it will be supported to ensure that a sector does not need to use a bank loan to obtain the capital for a school that has been approved. The ESA will work with the sector to provide the accommodation that is required in such a school’s early years. That approach applies to all sectors.

1388. Mr Lunn: Will that make it easier or more difficult for integrated and Irish-medium schools to establish themselves?

1389. Mr McGrath: A bit of both. In future, it will be more of a challenge to demonstrate the need for a school, and the test will be more difficult to pass; more will be involved than submitting an aspirational proposal. If a proposal is approved, public funding should be available from the start, and providing capital from hand to mouth would cease. In future, we need clearer and more robust planning to replace the “set-off-and-see" approach that sometimes occurs. Although that approach has worked in many cases, it has caused problems in others.

1390. The Chairperson: That affects development proposals. The Committee raised the issue that development proposals that are submitted before the establishment of area planning could lead to school blighting. In the past, a few individuals have been able to submit a development proposal that has ultimately changed a school’s nature or designation. I will not start a debate on the merits of integrated education — and I am sure that Trevor will be delighted to hear that — but there is sense of hurt in some areas when schools have been forced to take a road that has not been based on the merits of a case. Schools have been forced down that road because they are afraid of losing pupils — it has been a numbers exercise. How can we stop that happening in future?

1391. Every sector has a right to exist, but we need fairness if we want to achieve equity or, to employ a well-used phrase, to see a level playing field. I would love to see that: I do not think that it exists; I do not think that even Wembley Stadium is a level playing field. I hope that the playing field is level for Northern Ireland’s game tonight.

1392. People argue that there has not been fairness to date because of issues such as club banking that provides an advantage, or the ability to present a development proposal. That forces a sector or school to go down a road for reasons not based on merit.

1393. Mr McGrath: There will be challenges before area plans are in place. Area plans are about getting an overall assessment of need and responding to it. Neither the Department nor the ESA would be happy with proposals being brought forward in isolation, as in some of the circumstances that the Chairperson described.

1394. First, because a development proposal is made does not mean that it must be accepted. There is no assumption one way or the other: it must be considered on its merits. The likely strategic needs of an area would have to be taken into account, as would any relevant issues, and how far off an area planning exercise is likely to be. We would look at those issues through a much more critical lens.

1395. The Department and the ESA would also dialogue locally with all the sectors to tell them that we need to change. Simply submitting proposals to get them in before the tighter disciplines are in place is not the way to apply.

1396. Mr Rooney: Proposals for transformations have been turned down because they were perceived not to be about long-term viability but about falling roll numbers. Proposals can be turned down once all the factors have been taken into account. The Minister has done that on several occasions. The area-planning disciplines will consider those issues and other factors in an area and what is right in an individual case. Suggestions, ideas and comments on plans from various stakeholders are taken into account. However, it must ultimately be asked whether that is the right solution in that area, given the educational needs that must be addressed.

1397. The Chairperson: The subgroup of the central group is working on the basis of the five education and library boards. There was reference in the Minister’s statement, as well as in some of the papers, to working on the new model for 11 local councils for area planning. Is that still the basis on which the work is predicated? Is there any other thinking on whether it should be an amalgamation of the 11 areas? Do you know the group’s thinking?

1398. Mr McGrath: The exercise should be concluded before the ESA comes into being. Organisationally, the statutory role of the ESA will be based around six local area offices, covering two of the new local government boundaries and one based in Belfast. The areas for area-based planning are likely to be much smaller and reflect travel-to-school-areas. They could incorporate Coleraine and its surrounding area or an area in Fermanagh. It would depend on the travel-to-school patterns, for example. Some would be bigger and some smaller — we will have to take account of local circumstances. We do not propose a one-size-fits-all definition for area-based planning, as that would not be sensitive to local circumstances.

1399. The Chairperson: Thank you, John, Tom, Eugene and Chris. I will soon know your names off by heart without having to consult my papers.

18 February 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Tom Elliott
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Michelle O’Neill

Witnesses:

Mr Jeff Brown
Mr Chris Stewart
Mrs Eve Stewart

 

Department of Education

1400. The Chairperson (Mr Storey): John is unable to be here today, and you are welcome, Chris. The Committee is beginning to wear the officials down, with one down and four to go. Today’s meeting must end at approximately 11.45 am because of a science, technology, engineering and mathematics (STEM) event taking place in the Long Gallery. That will curtail members’ questions, but as I always say, the Committee is free to return to any issue that it considers has not been adequately covered.

1401. Chris, perhaps we can divide the discussion into three areas and consider those in the following order: the commencement arrangements; the powers to make subordinate legislation; and the links to existing primary legislation.

1402. Mr Chris Stewart (Department of Education): I am happy to do that. I apologise in advance for what will be a dry, technical presentation on a dry, technical paper.

1403. Mr B McCrea: No change there then.

1404. Mr C Stewart: That is the nature of the subject matter.

1405. The paper describes the two ways in which primary legislation can be brought into operation: automatically on the date of Royal Assent, or at a later date by means of commencement Orders. The commencement arrangements for the Education Bill are set out in clause 54. As with most Bills, they include both mechanisms, so there is nothing unusual about that.

1406. However, the proportion of the provisions that are covered by each mechanism is unusual. In this case, all the substantive provisions — including those to establish and assign functions to the education and skills authority (ESA), and to dissolve the existing organisations — will be initiated by means of commencement Orders. As Members will recall, that is to reflect the decision of the Minister and the Executive that the review of public administration (RPA) should be regarded as a single legislative programme and that the two required Bills must remain synchronised. Therefore, the commencement arrangements are designed to ensure that the timing of the implementation of the first Act can be adjusted, if necessary, to maintain that synchronisation.

1407. The very few provisions that will commence on Royal Assent are set out in table 1 of annexe A to the paper. Those particular provisions will be commenced in that way either for technical reasons or because they provide for actions that the Department will have to take in advance of the implementation date of 1 January 2010.

1408. The technical issues are self-explanatory: both the clause giving the short title of the Bill and the clause that allows for the making of the commencement Orders must commence on Royal Assent.

1409. The remaining provisions, significantly those that deal with staff transfer, relate to what the Department must do in advance of implementation. Although staff transfer will not take place until 1 January 2010, when the new organisation comes into operation, it will be affected by means of a series of transfer schemes that the Department hopes to prepare well in advance of that date.

1410. Therefore, we need an early commencement of the provisions that allows us to draw up the transfer schemes. I assure the Committee once again that there is no suggestion that transfer will take place prior to 1 January 2010.

1411. The Chairperson: Clause 50, which will be commenced by Royal Assent, states in subsection 1:

“The Department may by order make"

1412. (a) and (b). Are those departmental Orders? If so, why are they not among the regulations set out in clause 51, which are subject to negative resolution procedure and laying before the Assembly?

1413. Mr C Stewart: I was going to explain that in the second part of the presentation. The answer is that it is standard practice. Commencement Orders are, as you say, orders made by the Department; they are not normally subject to Assembly control. The reason for that is that the Assembly, in passing the Bill, will have made its will clear and expressed its agreement to the legislation coming into operation. It is then regarded as a technical matter for the Department to do so at the earliest possible date.

1414. The Chairperson: Do members have any other questions about the commencement arrangements? Will the Department consult with the Committee on the timing of the other provisions coming into operation as set out in clause 54?

1415. Mr C Stewart: Yes. We will keep the Committee apprised of everything that we propose to do. We will bring all the commencement Orders to the Committee in due course.

1416. Mr B McCrea: Are the clause 54 commencement Orders also technical issues that do not require Assembly consent, or will they come before the Assembly by way of negative resolution procedure?

1417. Mr C Stewart: Commencement Orders are not subject to Assembly control, but all the other Orders — except for those that modify primary legislation — are subject to negative resolution control procedure. The clause that gives us power to modify primary legislation is the other exception. Due to the significance of that power, it allows the Department to make or to modify primary legislation. That is an extremely significant power, and one that ought to be — and will be — subject to Assembly control.

1418. Mr B McCrea: I understand why, in the past, negative resolution procedure was useful. It saved a lot of work, unless an issue arose. However, given the voting arrangements that we have and the sensitivity of these issues, is there any provision to make them subject to positive resolution?

1419. Mr C Stewart: Yes — if the Assembly passed an amendment to that effect.

1420. Mr B McCrea: That is a useful point.

1421. The Chairperson: Do members have any other questions on the commencement arrangements for the Bill?

1422. Mr McCausland: It is good to see that the Minister will be seeking Royal Assent for this legislation. That warms my heart.

1423. The Chairperson: I thought that that would please you.

1424. Mr B McCrea: Every dark cloud has a silver lining.

1425. Mr O’Dowd: It makes you feel all warm inside.

1426. The Chairperson: We move on to the powers to make subordinate legislation.

1427. Mr C Stewart: We have already touched on these issues in answering members’ questions.

1428. The range of enabling powers contained in the Bill is set out in table 2 of annexe B of the paper. Those broad powers provide for the making of subordinate legislation of three types: regulations, which are substantive law made by the Department to regulate or govern the exercise of functions on an ongoing basis; orders, which are of a one-off nature, and are made by the Department to exercise executive power or to make decisions in particular instances; and by-laws, which will be made by ESA to govern a range of local matters. As I have said, the arrangements for Assembly control of the various types of subordinate legislation are set out in clause 51.

1429. All the regulations and most of the Orders are subject, as the Bill is currently drafted, to the negative resolution procedure. Exceptions to that are the modifying Orders that I referred to under clause 51, the commencement Orders themselves, made under clause 54, and Orders to transfer assets, made under paragraph 2(1) of schedule 4. As I have said, the modifying Orders are subject to the stronger Assembly control procedure of affirmative resolution, simply because of the significance of the power involved. Commencement Orders and operational matters, such as asset transfer Orders, as would be normal practice, are not subject to Assembly control.

1430. The Chairperson: Paragraph 7 on page 132 of the briefing paper states:

“Clause 51 of the Bill sets out the arrangements for Assembly control of the subordinate legislation. All regulations and most orders made under the Act will be subject to the negative resolution control procedure."

1431. Most Orders, but not all?

1432. Mr C Stewart: No; the exceptions are the modifying Orders under clause 50(1), the commencement Orders and the asset transfer Orders.

1433. The Chairperson: Other than asset transfer, what other operational matters would not be subject to Assembly control?

1434. Mr C Stewart: Those are the only matters.

1435. The Chairperson: So, those matters covered by clauses 51 and 54 and paragraph 2(1)?

1436. Mr C Stewart: Yes; clauses 51 and 54 and paragraph 2(1) of schedule 4.

1437. Mr B McCrea: Are those the only matters?

1438. Mr C Stewart: Yes; there is nothing unusual in that pattern — it is standard practice that legislative counsel follows when drafting such provisions.

1439. Mr B McCrea: When will it be appropriate for us to debate the issues that we have with the Bill? Should we raise them in the Committee, the Assembly or should we just come and have a word with you? When will we be able to get to grips with the issues that we have with the Bill’s provisions?

1440. Mr C Stewart: Any or all of those processes would be appropriate. If the Committee feels that the commencement arrangements in the Bill are not to its liking, it could table an amendment at the Consideration Stage.

1441. The Chairperson: We have set a deadline of 20 February for the return of submissions from people who want to comment on the Bill. A couple of organisations have told us this morning that they will not be able to meet that deadline. We said that that is fine and that we will accept their replies at some stage. When we begin clause-by-clause scrutiny of the Bill, we will group the clauses as 1 to 5, 5 to 10, and so on. When it is time to scrutinise clauses 51 and 54, there will be an opportunity for Committee members to recommend changes if they are not happy. Am I correct, Chris?

1442. Mr C Stewart: Yes; if there is a consensus in the Committee about amendments, we will take them to the Minister and return to the Committee with her views on them. We want to share with the Committee, at an early stage, a small number of amendments that the Department wants to table at Consideration Stage, to ascertain whether there is consensus from the Committee on them. It will be good if there is complete consensus between the Committee and the Minister on amendments. However, if there is not, we will await the will of the Assembly on the amendments.

1443. The Chairperson: That would be useful. The Committee Clerk and I have not decided on a structure for how to address the clauses. That is something that we must consider; the way that we address the clauses should be done in a way that both helps the Department and reflects the Committee’s view. That should be done so that no issues arise three months down the road. There is an onus on all of us to do that, which is why I have endeavoured, maybe not very successfully, to work methodically through the Bill. That is why we will address the underlying policies in the Bill until 20 February, after which we will start to work our way through its clauses. Chris, it may be useful to have a conversation with you about that.

1444. Mr C Stewart: That is very helpful, and we would appreciate such an approach from the Committee. To facilitate the Committee’s work, we intend to let you see the amendments that we will be proposing, or at least the areas that those amendments address, in the next couple of weeks.

1445. The Chairperson: Which of the Orders contained in annexe B of your paper are not subject to the Assembly control proceedings?

1446. Mr C Stewart: The exceptions are the modifying Orders under clause 50(1), commencement Orders under clause 54 and the Order to transfer assets under paragraph 2(1) of schedule 4.

1447. The Chairperson: Clause 50(1) refers to clause 12, ‘Modification of employment law’. Is that correct?

1448. Mr C Stewart: Yes.

1449. The Chairperson: Members should make a note of clause 50(1). Are members clear that clause 12, ‘Modification of employment law’, clause 54, ‘Commencement’, and paragraph 2(1) of schedule 4 are not subject to Assembly control proceedings?

1450. Mr B McCrea: Is the “50" on your paper the same as clause 50(1)?

1451. Mr C Stewart: That is a fairly standard provision that legislative counsel includes in most Bills.

1452. The Chairperson: Is it subject to Assembly control?

1453. Mr C Stewart: Apologies, Chairman. I think that I left that one out when I was giving you the list. It is clause 50, and allows us to make supplementary, incidental or transitional provision. It is included so as to provide grace, in case we discover that we got something wrong in the drafting of the Bill. It allows us to put it right quickly.

1454. The Chairperson: Eleven years later, Chris.

1455. Mr C Stewart: Perhaps not as quickly as that.

1456. Mr B McCrea: For clarity, I have clause 12, clause 50(1), clause 54 and paragraph 2(1) of schedule 4.

1457. Mr C Stewart: We will double-check the table for any inaccuracies.

1458. The Chairperson: Which Orders and regulations in annexe B are subject to affirmative resolution?

1459. Mr C Stewart: The only one that is subject to affirmative resolution is clause 12. The power that it relates to is the power in clause 12.

1460. The Chairperson: That is OK.

1461. Mr B McCrea: What is that about clause 12?

1462. The Chairperson: Basil, we want to establish what clause is subject to affirmative resolution. There is only one clause.

1463. Mr B McCrea: Clause 12 is affirmative, but I have noted clause 12 in the same category as clause 50(1); that is what I thought that you had told me.

1464. Mr C Stewart: That is correct.

1465. Mr B McCrea: Are you positive?

1466. The Chairperson: That is correct, is it not?

1467. Mr C Stewart: That is correct, Chairperson. Only one power is subject to affirmative resolution procedure — the power in clause 12.

1468. The Chairperson: Will you explain the powers in clause 12 that enable employment law to be modified, and provide an example of how they would be used?

1469. Mr C Stewart: Upon reading, those powers may appear draconian. I assure the Committee that they are not. They are there to be used if needed to facilitate the operation of the employment model that we have described to the Committee. In other words, they provide the power — if needed — to slightly change employment law in order to assign a particular responsibility to the ESA or to a board of governors.

1470. The powers do not enable fundamental changes to be made to employment law. Therefore, we cannot change or dilute the responsibilities of the ESA as an employer; nor can we remove the fundamental rights of any member of staff under employment law. I assure the Committee that that is neither our intention nor is it within the scope of the provision.

1471. Mr B McCrea: That is a serious issue for many people. Mr Stewart has given the Committee assurances, but can anything be done to include those provisos in the legislation? People may consider such matters and surmise that the Department is assuming the power to do whatever it likes.

1472. Mr C Stewart: That may be possible, but if the Committee is minded to bring forward, and sought legal advice on, such an amendment, I believe that that legal advice would be that the move is unnecessary, because the powers do not allow the Department to misbehave in the manner that is feared.

1473. That provision is not new or unique. A similar one that uses exactly the same wording is included in the 1989 Order. It is a fairly standard clause that counsel would use in situations in which the Department wants to implement part of a policy that would otherwise be difficult because of an aspect of employment law. In that case, the power can then be used to remove whatever the minor issue is.

1474. Mr B McCrea: The point is that the Department is given the power to do things that it forgot about or to rectify mistakes, of which everybody is capable. The other side of the coin is that people are worried about those powers being misinterpreted. I have no wish for duplication, but surely legislation must be explicit and make clear what is fully intended. I believe that a form of words can be found that will help both sides.

1475. Nobody is saying that the Department should not have the power to fix things if they do not work out right. However, in their darkest moments, people must be reassured that legislation is not being used in a way that is contrary to that originally envisaged. Can a form of words be found that will counter those complaints and help the Committee?

1476. Mr C Stewart: I am sure that that is possible. At this stage, my advice is that that form of words may be better employed in the description, perhaps even in the explanatory and financial memorandum that accompany the Bill, rather than in the Bill itself.

1477. Mr B McCrea: Is that binding? I am seeking guidance because I have not done this before. How binding is that explanation and guidance?

1478. Mr C Stewart: It is not binding, in the sense that the explanatory and financial memorandum does not have the effect of law. However, the content of the explanatory and financial memorandum would be taken into account if there were a dispute and a court was required to make a ruling. In itself, it is not binding.

1479. The Chairperson: How different is what is proposed in the management of this process to what happened in the administration and governance of health services? How different are the clauses in the Bill that effected those changes from those that the Committee is currently considering?

1480. Mr C Stewart: Many aspects are similar. Many clauses in health RPA legislation and, indeed, in the legislation that set up the library authority are almost word-for-word identical to similar clauses in the Education Bill. That is because legislative counsel always likes to follow best practice when taking such matters forward.

1481. For example, schedule 1 to the Bill sets out a range of issues on the composition, governance and operation of the education and skills authority. There is a similar schedule in the Libraries Act and in the Health and Social Care (Reform) Act. Standard provision is used.

1482. The biggest difference between the Bill and those other pieces of legislation is the commencement Order. It is unusual — in fact, it is unique in my experience — for that proportion of a Bill to be actioned by means of commencement Order.

1483. Mr O’Dowd: I was going to raise the matter of the Health and Social Care (Reform) Act as it relates to how this RPA process is being managed. I imagine that no piece of legislation can be used to subvert or undermine employment legislation or any other kind. In that sense, therefore, you should not be looking for reds under the bed.

1484. If there are genuine concerns, they could, perhaps, be covered in the explanatory notes that explain the Bill’s purpose in order to reassure people.

1485. Mr C Stewart: It is right that a further, even slight, degree of reassurance should be offered. We did not ask for that clause: legislative counsel advised us that it ought to be included in the Bill because it is a standard clause that would normally be included in provisions of that nature.

1486. The Chairperson: If there are no further questions on that matter, we will move on to consider the links to existing primary legislation. That is where we will enter an absolute minefield. Perhaps, members, we may have to examine that again. I am well aware that the matter is extremely technical. Sometimes, questions are raised in everyone’s mind about why there are schedules, commencement Orders, and all of that. We may need to give that consideration. This is the first time that the current Committee has taken on such a task. An understanding of the matter would be extremely useful; even if that means that we must return to it again and again. Eleven other pieces of legislation are affected as a result of the Education Bill. Do you want to jump into the water, Chris?

1487. Mr C Stewart: I will jump into the water where only civil servants are comfortable, and even they are not terribly comfortable.

1488. Chairman, your warning is timely. I wrote the paper with what you have just said in mind. It would probably have taken me at least a year to try to write a paper that covers every aspect of every existing Order, and taken the Committee at least a year to read. Therefore, I have not endeavoured to do so. However, I recognise that the Committee will, undoubtedly, want to come back to particular aspects of the Bill. We are more than happy to do so at your request.

1489. In the paper, I have tried to illustrate the process that we have followed to link existing legislation to the Education Bill, and some of the principles that we have tried to reflect in doing so. As the paper explains, education legislation is some of the most complex and voluminous on the statute book. I spent much of the early part of my career in health, where, I can tell you, the volume of legislation is about 20% of that which exists in education. Therefore, to get through it is a challenge for any reader.

1490. The paper lists the 11 education Orders that exist at present. In many ways, the most significant is the earliest one, the Education and Libraries (Northern Ireland) Order 1986, which is, sometimes, known as the principal Order. It is the main piece of legislation. Seven of the other Orders are explicitly linked to it, because they contain provisions that state that they are to be construed together with 1986 Order.

1491. That means that any definitions or interpretations in the principal Order apply equally to the later Orders. The net effect is that those eight linked Orders and, indeed, the new Education Bill should be read and interpreted as if they were a single piece of legislation.

1492. I am afraid that this is when the fun starts, because it is not as easy as that. Each time a new Order was brought forward, not only did it add significant new provisions to the body of the legislation, but it amended significant chunks of the existing Order. Therefore, each time another layer went on the onion, the position became more complex and more difficult to follow.

1493. Further complications arise from the fact that there are a series of provisions on the statue book that have not yet been commenced for a variety of reasons, be those policy reasons — because it was not felt necessary or timely to do so — or because, as we said earlier, errors were made, from time to time, in taking forward commencement Orders.

1494. It was against that complex and difficult background that we sat down to examine the existing legislation and to create the necessary linkages with the Education Bill.

1495. We scrutinised all the Orders in detail by examining carefully every word and every line. The idea was to re-orientate all that legislation so that it linked to the RPA arrangements. To use an analogy, it was like using a magnet to pull iron filings in the same direction. Specifically, we examined the transferring of functions from existing organisations to the ESA, eliminating any redundant functions that were no longer needed, resolving any duplication of functions —, for example, both the CCMS and the education and library boards have some functions that are the same, and we did not need to transfer both sets — transforming some functions that needed to be changed, and a range of consequential amendments.

1496. A great deal of other legislation that is outside the field of education has references to education and library boards, and, of course, we needed to change all those. All that added up to more than 1,200 repeals and amendments. Many of those were straightforward, but others required complex changes and careful consideration. Most of the simple amendments involved changing a reference from “education and library board" to “education and skills authority". Legislative counsel, Mr George Gray, has taken a particular approach to doing that. He has drafted a catch-all provision in sub-paragraph 1 of schedule 7.

1497. The effect of that provision is that after 1 January 2010, any reference in any of the education Orders to “education and library board" should be taken to read “education and skills authority". That catch-all provision makes hundreds of changes to education law. Such references automatically change law, unless they are subject to a more bespoke amendment given explicitly in the Education Bill. The remainder of schedule 7 deals with other amendments, and schedule 8 deals with the repeals. As I said, I have not attempted to list all those changes in the briefing paper; however, I have picked out a number of examples to illustrate what we tried to do and how we tried to do it.

1498. I provided examples of the effects of the RPA legislation on the education Orders. Those include the transfer of functions, the proposal to eliminate a redundant function, the overlap of functions, or minor amendments to a function. I will not read those out now; however, we are happy to take questions on any particular aspect that members want covered.

1499. I draw the Committee’s attention to annex D of the briefing paper — schedule 5 to the Education and Libraries (Northern Ireland) Order 1986 showing the effect of amendments in the Education Bill — as that provides a picture of what the legislation will look like. By including both the highlighted and the struck-out text, we tried to show the totality of the effects of the various amendments and repeals on that particular schedule.

1500. The schedule deals with the appointment of governors to schools. That is quite a simple set of amendments; however, as members can see, unless one has the fully amended text in front of oneself, it is difficult to envisage the totality of the effect. We provided that example because a number of stakeholders read the Education Bill without reading the schedules of repeals and amendments in great detail — and, let us face it, why would they unless they had to — or the earlier education Orders and came to the wrong conclusion that we had removed the requirement to consult trustees of Catholic schools before the appointment of governors.

1501. It is only when one sees the amended schedule in its entirety that it becomes clear that that requirement is still there. However, it has changed from a requirement to consult the Council for Catholic Maintained Schools to a requirement to consult trustees. It is no longer the Departments or boards that will carry out the consultation; it will be the ESA. It is actually quite a simple set of amendments, but it illustrates the complexity and the challenges for any reader of the legislation.

1502. We have also provided a very brief summary in tabular form of the main groups of provisions in each of the eight linked Orders, to try to provide the Committee with a map of education legislation. It is far from a straightforward map; it is not as neat and tidy as anyone would like it to be. If one were to ask, for example, where the finance provisions are, the answer is that they are all over the place, but mainly in the 1989 and 1998 Orders. If one were to ask where the main provisions for education and library boards are, they are mainly in the 1986 Order, but there are a few others scattered throughout the other Orders. It is a very complex map indeed.

1503. We have not provided tables for three of the Orders. The Youth Service (Northern Ireland) Order 1989 will be repealed in its entirety, so that table would be superfluous. The other two Orders — The Education (Northern Ireland) Order 1987 and The Special Educational Needs and Disability (Northern Ireland) Order 2005 — will only be subject to a small range of amendments; therefore, we did not burden the Committee with two more tables that were not needed.

1504. I am genuinely unsure whether that has been of any use to the Committee whatsoever. I hope that it has. If to any extent it has not, we are happy to take members’ questions.

1505. Mrs M Bradley: You could come back a thousand times to discuss this issue.

1506. The Chairperson: I have said to the Committee a number of times that these are very technical issues. We all have a duty to ensure that we deal with them, but there is a limitation to what we can actually take on board. It is similar to issues involving finance; if one is not an accountant, one will have difficulty understanding all the issues.

1507. In relation to paragraph 23 on page 136 of the briefing paper, will you explain the need for the insertion of a new article — 18A — into the 2003 Order, giving the ESA powers to direct boards of governors? I would assume that articles 17 and 18 of the 2003 Order provide relatively up-to-date and strong powers in that area.

1508. The Committee Clerk: That paragraph of the briefing paper relates to clause 47 of the Bill.

1509. Mr C Stewart: That refers to a transformed function. The Department has identified what it thinks is quite a significant weakness in the legislation. In relation to child protection, the desired end result is that there should be clear responsibilities on each person or body that has a role to play in education. It should be perfectly clear what their responsibilities are and what they are expected to do. There should also be measures to ensure that those responsibilities are fulfilled — that is where a gap was identified.

1510. The existing provisions in articles 17 and 18 of the 2003 Order place clear responsibilities on boards of governors of grant-aided schools, but there seemed to be no effective means in the legislation for ensuring that they discharged those responsibilities. That is why the Department has suggested the additional clause, which would give the ESA the power to direct boards of governors of grant-aided schools if there is something that they are not doing, or are not doing correctly in relation to child protection. That is a significant provision.

1511. The Department is sometimes told by stakeholders that it has given the ESA draconian powers to do all sorts of things — that is not the Department’s view. The one area where it has, very explicitly and quite deliberately, proposed that the ESA should have significant powers is on the issue of child protection. It is felt that if an issue of child protection arises, it would not be sufficient for the Department to be able to explain to the Committee afterwards exactly who got it wrong, and where the responsibility lies. The Committee would also expect the Department to have done something about that to ensure that it did not go wrong in the first place. That is why that power has been included.

1512. The Chairperson: Is there a deficiency there, as the law stands?

1513. Mr C Stewart: Yes, I believe that there is. At the moment, the Department is in a position, if something goes wrong, to come along afterwards and apportion blame. It is not in a position to make sure that it does not go wrong in the first place.

1514. The Chairperson: Does that relate only to the ESA’s power to intervene and to direct boards of governors in relation to child protection?

1515. Mr C Stewart: Yes. That is the only subject matter —

1516. The Chairperson: It is only in relation to that issue?

1517. Mr C Stewart: Yes; it is the only subject matter on which the ESA can direct boards of governors. It has no role in directing them otherwise.

1518. The Chairperson: If a board of governors decided to go down a particular road and do something else — subject to the board of governors meeting all other legal provisions — does the ESA not have the power to prevent the board of governors from taking a decision?

1519. Mr C Stewart: That is correct, with the exception of child protection. That reflects the role and the ethos of the ESA that we intend. It is not intended to be a command-and-control body; it is there to challenge schools when necessary — particularly around raising standards — but primarily to provide advice, support and assistance. It is not a command-and-control organisation. The policy is ‘Every School a Good School’, not ‘Every School a Controlled School’. That is our aim.

1520. Mr McCausland: Under the new regime, will the general duties of boards of governors be altered? Perhaps I missed it, but is there a list of the 10 duties?

1521. Mr C Stewart: That is in next week’s paper, which the Committee has not yet received.

1522. The Chairperson: Next week, we will deal with the specific issue of boards of governors.

1523. Mr C Stewart: I will make sure that we list all the duties of boards of governors in next week’s paper. The significant additional duty that is contained in the Bill is about raising standards. There are parallels to the issue of child protection: we want to ensure that everyone who has a role to play in education is absolutely clear about their responsibilities. Nowhere in current legislation does it state that a board of governors is responsible for the standards of attainment in its school.

1524. That is a deficiency that was highlighted very clearly in the ‘Every School a Good School’ policy. We want to put that right, but we have not given the ESA the power to direct boards of governors in relation to attainment standards. We have proposed that a duty should be placed on boards of governors to co-operate with the ESA and the exercise of its functions. I am sure that the Committee agrees that that is not as draconian as a power to direct.

1525. Mr McCausland: Currently, the training for governors that is provided by the education and library boards is of indeterminate quality. How will that training be delivered in future?

1526. Mr C Stewart: It will be delivered in a variety of ways. There will be a statutory duty on the ESA to provide that training and support, or to procure it. In policy terms, if boards of governors in individual schools — or in groups of schools — feel that there are sound and credible alternatives to the training services that the ESA provides, we are certainly amenable to the idea of them procuring training services themselves. We would expect the ESA to support them in doing so.

1527. As John McGrath and Gavin Boyd said in a previous session, it is very much about changing the nature of the relationship between the ESA and boards of governors from that which currently pertains with education and library boards. We want to move away from the current position — in which education and library boards offer services and boards of governors can, essentially, take them or leave them — to a situation in which the ESA is sensitive and responsive to what boards of governors seek. It is a commissioning type of relationship: we want the services that the ESA provides to be driven by what governors tell it are necessary, rather than the other way round.

1528. Mrs M Bradley: What Chris said more or less answers my question. In other words, the training that was provided for boards of governors was voluntary, whereas this time around, it will be compulsory. Is that correct?

1529. Mr C Stewart: No, it will not be compulsory for —

1530. Mrs M Bradley: Should it not be?

1531. Mr C Stewart: There is an argument for that. It is certainly advisable. We are asking governors to take on a significant set of responsibilities. I do not think that any governor should do so without being adequately trained and prepared.

1532. Mrs M Bradley: Are those responsibilities in relation to child protection?

1533. Mr C Stewart: Absolutely.

1534. Mr B McCrea: That gets back to the nub of the issue. I understood John McGrath to say in evidence to the Committee that the change in the ESA, as it is proposed now compared with it where it might have been before, was that it was to have a significant role in raising standards. I will look at the Hansard report to clarify what was said earlier.

1535. Mr C Stewart: So will I.

1536. Mr B McCrea: It is an important point. I understand that that change came from determinations by the Public Accounts Committee on literacy and numeracy failure and that the Department said that it had a great strategy but that it was unable to implement it. I understood that the ESA was to be able to direct schools to ensure that standards in all schools were raised, particularly in the key areas of numeracy and literacy. If I heard you correctly earlier, you said that that was not your intention and that all that you were going to do was point out to people that they might do better.

1537. Mr C Stewart: The position is somewhere in between the two ends of the spectrum that you have described. We do not take a laissez-faire approach and simply point out to schools where they could improve and wash our hands of them. Equally, we do not give command-and-control direction. The ‘Every School a Good School’ policy is predicated on self-improvement and self-development by schools, so it is a schools-led process. The role of the ESA will be one of challenge and support.

1538. Intervention powers exist in current legislation and are not being introduced in the Education Bill. Those are not powers to direct; they are what we describe as the graduated response. Help can be offered where it is required. If necessary, boards of governors can be supplemented with additional governors if there is a need to increase the competence or ability.

1539. In extreme cases, such as a failing school, the composition of a board of governors can be changed or completely replaced. In the most extreme of all circumstances, a school can be closed. Those are the exception, and we do not envisage or want to be in that sort of position. Our role for schools that can do better is, primarily, to point out where they can do better and to immediately offer the help, support, advice and services that they need to lead themselves into a better position.

1540. Mr B McCrea: I will not detain you, because there are other issues to discuss, but that gets to the nub of our concerns. I am still not sure whether the ESA is a friendly uncle or some sort of draconian policeman. Most of the governors value their independence and want to get involved, and I think that you have to come forward with clarity about what the ESA will be able to do. It is not enough to hide it in legislation that fudges issues or is clear only to legislative counsel. We need legislation that the people who are being asked to run schools can clearly understand.

1541. Mr C Stewart: That is entirely correct. The ESA is a friendly uncle or a critical friend, not a draconian policeman. When stakeholders say, as they do from time to time, that they do not like the legislation because it is full of draconian powers, I usually ask them to show those to me. They cannot, because those draconian powers are not there.

1542. Mr B McCrea: I can. For a start, there is rule 101, the ability to add governors, the ability to change governors, and the ability, ultimately, to close schools.

1543. Mr C Stewart: All that is covered by existing legislation.

1544. Mr B McCrea: Absolutely, but according to some, we have a failing education system. The schools inspectorate says that 30% of schools might do better, so you might argue that you should have used those powers. The issue comes back to the fact that with the existing uncertainty, people want clarity. I am sure that we agree that we want clarity on who will do what and the powers that they will have. We do not want any surprises coming out of the woodwork.

1545. Mr C Stewart: That is a fair point. I am sure that the Committee will want to hold the Department and the ESA to account for their use — or lack of use — of the powers in due course. Stakeholders often suggest that the Education Bill will introduce a new range of draconian powers — that is not true. Although people might think that the powers are draconian, they already exist in legislation. As you said, we are criticised for not using those powers as often as we are criticised for using them.

1546. The Chairperson: The Committee will discuss the issue of boards of governors at next week’s meeting. Chris will circulate that paper on the basis of the Minister’s letter to the Committee. Members will receive that paper in good time in order to ensure that they are able to read it and digest the issues therein before next Wednesday’s meeting. Is that OK, Chris?

1547. Mr C Stewart: I know what I will be doing this afternoon.

1548. The Chairperson: Although I do not want to curtail members, I remind them that the meeting should conclude in the next few minutes.

1549. Mr Elliott: I want to ask a brief question about a technical issue, because I have only become a member of the Committee recently. Can some of the 11 existing Orders not be subsumed into the new legislation in order to restrict the amount of cross-referencing? Is it possible to streamline the legislation?

1550. Mr C Stewart: Yes, that is possible, and it is one of the Department’s objectives. However, it will probably take some years to do so. This Bill will remove one of the Orders and will remove significant chunks from the Education and Libraries (Northern Ireland) Order 1986 and the Education Reform (Northern Ireland) Order 1989. I expect the second Bill to shear more off the 1986 Order to the point that very little of that legislation will remain. At that point, we might ask legislative counsel whether we can insert the remaining bits into different legislation in order to remove one Order entirely.

1551. Stakeholders often ask — quite understandably and correctly — whether we could consolidate all the rules into one or two pieces of legislation. We can, and should, do so but not yet. Consolidation is a technical process that happens after legislation is reformed. Counsel cannot consolidate at the moment because it would be forced to hit a moving target, because the Department is still changing the legislation. When the two Bills on RPA are finalised — and, perhaps, one Bill to reform the legislation generally — we might be able ask counsel to create one consolidated piece of legislation. That is a mammoth and extremely technical task.

1552. The Chairperson: Is the 1986 Order the oldest piece of legislation that governs education, or is the Department still governed by powers that date from 1807 or whatever? That issue has been raised numerous times by local authorities, which claim that there is an archaic piece of legislation from 1879.

1553. Mr C Stewart: The 1986 Order consolidated the earlier pieces of legislation, the main one of which dated back to 1972. However, that is long gone. If my memory serves me right — if necessary, my colleagues will correct me — we discovered, through this exercise, that one or two pieces of the 1972 Order were still hanging around. We have dealt with such examples.

1554. Mr Elliott: Tradition is great.

1555. Mr C Stewart: I should add the caveat that some older pieces of legislation outside the education sector might affect education bodies. The Public Health (Ireland) Act 1878 might have some bearing on the activities of public authorities.

1556. The Chairperson: That Act might affect some schools.

1557. Mr C Stewart: My colleagues in voluntary grammar branch have told me that royal charters affect some schools. Moreover, some schools are companies limited by guarantee and are affected by companies’ legislation.

1558. Mr D Bradley: You mentioned the ‘Every School a Good School’ policy during your conversation with Basil. Does existing legislation contain all the powers that are necessary to implement that policy, or will the Education Bill create additional powers?

1559. Mr C Stewart: The powers are in existing legislation. The Education Bill will clarify the responsibilities, but the interventions already exist in law.

1560. The Department and the education and library boards each have some powers; those of the latter will transfer to the ESA. The strongest powers are, and will remain, with the Department. Therefore, if extreme circumstances arise in which a school must be closed, the Department will have the power to do that.

1561. Mr D Bradley: Will you explain what you mean by clarifying the responsibilities?

1562. Mr C Stewart: As I said earlier, nowhere in the current legislation does it clarify that boards of governors have a specific responsibility for standards of attendance at their schools. Equally, our colleagues in the education and library boards have told us repeatedly that they do not consider that their responsibilities for standards in controlled schools are made sufficiently clear in the legislation. That is why we are taking the opportunity to erase any doubt by ensuring that each person or body in the system knows exactly where the different responsibilities lie.

1563. Mr D Bradley: Schedule 13 in annexe C deals with:

“Education of children of compulsory school age; school attendance orders; duty of parent of registered pupil to secure his regular attendance at school; offences, penalties and enforcement."

1564. Those responsibilities, or functions, are being transferred from the education and library boards to the ESA. Will home-schooling be affected by the Bill, or is it catered for in existing legislation that will not be changed?

1565. Mr C Stewart: Existing legislation caters for home-schooling. If any of the education and library boards’ relevant functions need to be transferred to the ESA, minor amendments may be required, but we are not making any specific changes in that area.

1566. Mr D Bradley: Is home-schooling mentioned?

1567. Mr C Stewart: Off the top of my head, Dominic, I cannot say exactly where the provisions for home-schooling are to be found. However, if they are contained in any of the primary Orders, we will, through a series of minor amendments, transfer the functions to the ESA. If it would help, I will check that and come back to you.

1568. Mr D Bradley: Will home-schooling still be permitted?

1569. Mr C Stewart: Yes; there will be no change.

1570. The Chairperson: I declare an interest as a member of the board of governors of an independent school. Does that also apply to independent schools?

1571. Mr C Stewart: Nothing in the Bill changes the position of independent schools, which are largely unaffected by the legislation on education — with one highly significant exception. Independent schools are included in the inspection provisions and, therefore, can be inspected by the Education and Training Inspectorate.

1572. The Chairperson: Thank you. Members, you will probably go home and read your Committee papers tonight and tomorrow night, and return next week with more questions. Again, I thank Chris, Jeff and Eve for their attendance. Chris, I look forward to seeing you and your colleagues next week, same time, same place.

25 February 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mrs Michelle O’Neill
Mr Edwin Poots
Mr Tom Elliott

Witnesses:

Mr Jeff Brown
Mr Peter Burns
Mrs Eve Stewart

 

Department of Education

1573. The Chairperson (Mr Storey): I refer members to their briefing papers for the session; the three items that we want to cover this morning are employment schemes, schemes of management, and boards of governors. Joining us are Chris, Jeff and Peter from the Department. Gentlemen, you are very welcome. Perhaps, Chris, you will begin with a word about employment schemes.

1574. Mr Chris Stewart (Department of Education): Thank you, Chairman, and good morning members. I will pass over some clauses reasonably quickly, as I am conscious that the Committee’s time is limited this morning, and I want to leave as much time as possible for questions.

1575. Clauses 3 to 12 deal with provisions for schemes of employment, the aim of which is to capture and set out the employment arrangements that were outlined in the paper considered by the Committee on 21 January. Clause 3 will establish the education and skills authority (ESA) as the employer of all staff, teaching and non-teaching, in all grant-aided schools. Members will recall that the original proposal was to spread that provision over the two review of public administration (RPA) Bills, but, in response to representations made to the Department, it will now be contained entirely in the first Bill.

1576. Clause 3 also defines the term “submitting authority", which means the body responsible in each case for preparing and submitting the schemes of employment and the schemes of management. As drafted, the trustees are defined as the submitting authority for Catholic maintained schools; and boards of governors are defined as the submitting authority for all other schools. As we said at previous Committee meetings, the Department is considering an amendment to that clause, the effect of which would be to redefine the submitting authority as the owners or trustees of schools in all cases, but with the provision for the owners or trustees to delegate the function to boards of governors if they choose.

1577. That reflects the views and representations made to the Department by stakeholders who made the point that owners or trustees are the guardians of schools’ ethos and that they ought to have a role in preparing and submitting schemes in order to ensure that a school’s ethos is properly reflected.

1578. However, if a board of governors owns a school, the amendment will have little effect because the owners and the board of governors are one and the same.

1579. Clause 4 sets out the scope of schemes of employment; it requires each grant-aided school to have one, and sets out the matters that the scheme should contain. The clause provides that employment schemes can impose duties on the ESA and on boards of governors, and requires that the schemes be consistent with education law and with schools’ schemes of management.

1580. Clause 5 deals with the process of drawing up employment schemes. It places a duty on submitting authorities to prepare schemes and to submit them to the ESA for approval, and requires the submitting authorities to take into account any guidance that is produced by the ESA. There is, of course, a corresponding duty on the ESA to issue and periodically revise any such guidance and to include in it model schemes. Schools may adopt model schemes without change, adapt them to suit their needs if they so wish or produce their own schemes from scratch. The role of the ESA is to approve the schemes either without modification or, if necessary, with modification if the schemes are not consistent with education law or if a school has failed to take proper account of the ESA’s guidance.

1581. Clause 6 outlines the reserve powers of the ESA to impose an employment scheme in the extreme circumstance of a school’s being unable or unwilling to produce one. Clause 7 provides for the revision of employment schemes by submitting authorities either periodically or at the direction of the ESA.

1582. Clause 8 is particularly significant as it defines the effect of employment schemes in governing and regulating the actions of the ESA and boards of governors. Under clause 8, boards of governors will have a statutory duty to comply with their schemes of employment, and the ESA will have a reciprocal duty to put into effect decisions of boards of governors that have been taken in accordance with the schemes.

1583. I emphasise that in its ratification role the ESA’s powers are strictly limited; that is deliberate on our part. The ESA is limited to sending a matter back to a board of governors to be reconsidered if, in arriving at its decision, the board of governors failed to follow its own scheme of employment. The ESA will have no powers either to direct a board of governors or to change a decision of a board of governors — it can merely refer a matter.

1584. Clause 9 and schedule 2 of the Bill take us into slightly different, but related, territory. They provide for the transfer of staff from voluntary schools other than Catholic maintained schools and grant-maintained integrated schools to the employment of the ESA. Staff in other types of schools — controlled schools and Catholic maintained schools — are transferred by other equivalent provisions; namely, clause 22 and schedule 3. Clause 10 establishes the ESA as the employer of peripatetic teachers and requires the ESA to develop a scheme of employment that is similar to the scheme that will be in place for each grant-aided school.

1585. Clause 11 is one of the most complex and difficult clauses in the Bill. It is difficult to read, and is in pressing need of significant amendment. The focus of the clause is the common funding scheme and the payment of salaries. Members will be aware that some schools operate their own payment systems while others pay their staff through central arrangements operated by the Department. The aim of clause 11 is to permit those schools that operate their own payment systems to continue to do so in future if they wish or to opt in to the central arrangements. That is the effect of 11(1) to 11(4).

1586. However, a complication has arisen as a result of an earlier piece of legislation, and there is a difficulty that stems from the definition of a maintenance grant. The law as it stands would not allow us to give boards of governors control over their salaries budgets. Clause 11 contains a work-around for that situation for voluntary grammar schools and grant-maintained integrated schools, but has not solved the problem for controlled and maintained schools. The net effect is that clause 11, as it stands, would prevent the boards of governors of those schools from having control over their salaries budgets. That will not do; it is absolutely at odds with our policy, and we feel that the clause must be significantly amended. We might even ask for clause 11 to be withdrawn and substituted with an alternative.

1587. Clause 12, which we discussed briefly last week, will permit the Department to modify employment law, but only where it is necessary to do so in order to ensure the smooth operation of clauses 3 to 11. It does not give the Department the power to change the fundamental responsibilities of employers or the fundamental rights of employees. I draw the Committee’s attention to a typing error in our paper, which refers to paragraph 2 of schedule 9 — it should, of course, read paragraph 9 of schedule 2.

1588. I have covered a great deal of material very quickly, much of which was technical, so Committee members may want me to expand on some issues.

1589. The Chairperson: Thank you, Chris. Clause 8 gives the ESA the power to send back boards of governors decisions. If the ESA feels that there is something not right with a scheme that it has been sent by a board of governors, how long will it take for a resolution? Will the ESA continually send back a proposal until it is satisfied that its requirements have been met, even though a board of governors feels that it has done all that it could to ensure that a scheme is properly constructed? Will there be an appeal mechanism against either the ESA’s modification to schemes or its final decision?

1590. Mr Stewart: Your question raises two areas in which a board of governors could disagree with the ESA; the first is the preparation of a scheme. Our goal is an efficient and effective process — we do not want the ESA to take a long time or schemes to boomerang back and forth. The ESA will provide model schemes, which schools can consider. In submitting their schemes for approval, schools are asked to indicate the extent to which their schemes differ from the model scheme. That is to simplify the process; if a school adopts a model scheme without change, it can be approved almost instantly by the ESA. Similarly, if the changes that a school makes to the model scheme are slight, that will speed up the approval process. If a school starts from scratch and decides to write its own scheme, the process might take a little longer because the ESA will have to scrutinise it carefully and ensure that it complies with education law. However, we would expect that process to be completed expeditiously.

1591. There is no formal appeal mechanism in the legislation, but if a school felt that the ESA was being unreasonable in holding up or seeking to modify its scheme, it could make a complaint to the Department. The Department would look into the matter and, if necessary, use its powers of direction under article 101 of the Education and Libraries (Northern Ireland) Order 1986 if it felt that the ESA was not acting reasonably.

1592. The other part of your question was what would happen if there was a disagreement between a board of governors and the ESA on a decision about a scheme. As I said, it is not our aim to have matters boomeranging back and forth between a board of governors and the ESA. The only grounds on which the ESA could decline to put into effect a decision by a board of governors is if a board of governors has not followed the scheme. It is not a question of the ESA second-guessing, disagreeing or coming to a different conclusion — if procedures have been properly followed, the ESA is legally obliged to put a decision into effect. If a school felt that the ESA was behaving unreasonably in that regard, a complaint to the Department would allow it to invoke the powers of direction under article 101 of the 1986 Order.

1593. The Chairperson: The programme ‘Room 101’ has been shown on television more times than the Department has used the powers in article 101 of the 1986 Order — it has been used only two or three times in recent years.

1594. Mr D Bradley: Are you suggesting that we put article 101 into Room 101?

1595. The Chairperson: There may be one or two individuals whom I want to put into Room 101, but I will not go there.

1596. You said that there is no formal process in the Bill. Would the Bill be enhanced and would protection for boards of governors be enshrined if there was an appeals mechanism? Would such a mechanism give boards of governors confidence? The Bill consistently tells us that management schemes will be subject to education and employment law.

1597. We are dealing with something that has a very technical and legal aspect.

1598. I think that Committee members are worried that, as soon as the Bill is enacted, a problem may arise and everyone will say that the matter in question is not covered by the Bill, so there is not much that they can do about it. It will be too late then. From the Department’s point of view, would it be advisable to have an appeals mechanism? Is such a mechanism included in the Health and Social Care (Reform) Bill, given that the Health Service is experiencing a great deal of change? Would an appeal mechanism add value? After all, the role of the Committee is to scrutinise the Bill.

1599. Mr Stewart: It is certainly worth considering. As for our sparing use of article 101, there is an African proverb: “talk softly and carry a big stick". We have not used that provision often, but schools and education and library boards know that it can be used if necessary. An appeals mechanism may give confidence to boards of governors, and I can understand why some may look for one.

1600. However, rather than creating an additional specific appeal or challenge mechanism, it might be possible to incorporate into the clause a cross-reference to article 101; that could be done rather than introducing a new procedure. There is a precedent, as the inspection provisions include a cross-reference to article 101 that makes it clear that if we need to remedy a defect that has arisen as a result of the inspection of a school, article 101 can be called into play. Therefore making an explicit link to article 101 may be worth exploring if it would give confidence to boards of governors if they felt that, in the discharge of its functions under clause 8, the ESA was behaving improperly.

1601. Mr Poots: My concern is that, although Chris is a very reasonable guy —

1602. Mr Stewart: Will that be in the Hansard report?

1603. The Chairperson: Yes; it is now official.

1604. Mr Poots: Chris puts his case very reasonably. However, when one starts to implement such measures, one often finds that there are those in the Civil Service who push things to the limit and behave as jobsworths. Clause 8 runs contrary to the ethos of the review of public administration, which aims at reducing bureaucracy. However, clause 8 will result in the ESA’s micromanaging the work of schools and their boards of governors. I do not know whether it is appropriate to have a provision that will allow that to happen. That is not what the RPA is about; therefore I question the need for clause 8.

1605. Mr Stewart: We recognise that concern. Clause 8 and the policy have been drafted with a view to preventing the very scenario that concerns Edwin. The ESA simply must not get involved in the micromanagement of schools. It would be wrong, counter-productive and impossible — even if it were the right thing to do, the ESA will not have the capacity to micromanage to that degree.

1606. However, we believe that clause 8 is necessary because if, in future, the question is asked who is the employer in education, the answer will be that it is the ESA and schools acting together: having a single employer and individual schools acting on behalf of the ESA in discharging functions. It is important that there is clarity in that relationship and in what schools are responsible for, what the limitations are, what the ESA is responsible for and, equally, the limits of its functions. That is what we propose with those clauses, particularly clause 8.

1607. Members may wish to see more detail of that relationship in order to be satisfied that we have got the balance right. The difficulty with that is that the detail will be in the schemes of management rather than in the legislation; therefore it may take some time to instil confidence in members on that issue. However, without such a clause or such provisions, schools would be at a disadvantage because the parameters of their relationship with the ESA would not be clear. There would be greater scope for the ESA to interfere unreasonably in the day-to-day management of schools if its responsibilities are not sharply delineated.

1608. Mr Poots: The Committee will require further discussion on that matter, Chairman.

1609. Mr D Bradley: Will schemes of employment under the ESA differ in any major ways from existing schemes that work, presumably, between the Council for Catholic Maintained Schools and teachers, and between education and library boards and teachers?

1610. Mr Stewart: It is not easy to provide direct read across with an existing scheme or approach. We could identify schemes of management as models to be followed in future. The concept of schemes of employment is relatively new; however, some of the content of what we are discussing is not. In the paper, I have tried to point out where practice exists. It is in legislation for controlled and maintained schools. Paragraph 9 of schedule 2 to the Education (Northern Ireland) Order 1998 sets out in quite some detail the respective roles of education and library boards and boards of governors in employment matters.

1611. We want to go at least that far — and further if we can — to place functions, autonomy and control firmly in the hands of boards of governors and restrict sharply the ESA’s ability to do anything other than support and assist them to take that forward. Paragraph 9 of schedule 2 places those significant responsibilities in the hands of boards of governors, particularly for matters such as the suspension and dismissal of staff. Those are matters for boards of governors; and for them alone. We seek that level of autonomy in the draft scheme.

1612. Mr D Bradley: Are those the major differences?

1613. Mr Stewart: It is not a question of major differences, because at present there is not a simple before and after with which to make that comparison. There are not schemes of employment for all schools in the way that there will be when the legislation comes into effect. There is a range of approaches across various types of schools and sectors — some with more clarity than others. At present, the clearest model is for controlled and maintained schools as set out in schedule 2. The difference is that if we take that as our starting point, we want to go further: we want at least that level of autonomy for boards of governors — preferably greater.

1614. Mr D Bradley: At present, the negotiating apparatus between teachers’ unions and the Department is mediated through the General Teaching Council for Northern Ireland. In future, will the ESA be the employment authority that will negotiate with trades unions on teachers’ salaries?

1615. Mr Stewart: Yes, and for non-teaching unions as well. There is already a collective negotiation arrangement between, on the one side, the teaching council and, on the other, current employers and employing authorities that act together in what is known as the “joint working party".

1616. It is chaired by a representative from the voluntary grammar sector, so all the sectors — as employers — work together. In that sense, there is no change. The only change is that there will be one organisation rather than several, but there will be the same collective approach to trades union engagement.

1617. Mr D Bradley: Will teachers’ conditions of service be changed by the arrival of the ESA?

1618. Mr Stewart: No — other than through the normal process of negotiation between trades union and employer. There is consistency in terms and conditions across all the sectors and school types, but there is not always consistency in their operation.

1619. Mr D Bradley: I raised the concerns that Irish-medium schools have about maintaining their ethos, because, in most cases, their trustees do not own the schools; the boards of governors do. They are worried that a board of governors could change the status of a school without the trustees’ blessing, and they want more powers to maintain the ethos of Irish-medium schools. Will that be provided for in the Bill?

1620. Mr Stewart: It will be difficult to go further than we have in the Bill or beyond a possible amendment to “submitting authority". However, such an amendment would not deal with your concerns, because if a board of governors owns a school, changing the definition of “submitting authority" would make no appreciable difference.

1621. I do not see much, if any, scope for us to restrict the day-to-day operation of a school in legislation. If the change was of such a profound nature that it required a development proposal, there would be a requirement to consult the trustees of a school and take their views into account. However, I do not claim that that would give the control or veto that they may be looking for in that case. I see no easy way of achieving that outcome in legislation.

1622. Mr D Bradley: Will you write to me about it?

1623. Mr Stewart: I will; I am conscious that a reply to you on that is long overdue, and I apologise.

1624. The Chairperson: Paragraph 4 of page 147A of your paper states:

“The Department is considering a possible amendment to this clause".

1625. When the Bill was being drafted, the perceived wisdom in the Department was that clause 3, as it stood, was acceptable. Paragraph 4 goes on to give the reason for the Department’s change of mind:

“to redefine the submitting authority in all cases as the owners or trustees of schools, with an option to delegate the functions to boards of governors. This reflects the views of a number of stakeholders, who suggested that school owners should be given the submitting authority role, so that they can ensure that the ethos of the school is reflected appropriately in the schemes of management and employment."

1626. Will we be allowing schools’ trustees to define whom they can and cannot employ on the basis of their ethos and not on the basis of the requirements of the school?

1627. Mr Stewart: No is the short answer; no scheme of employment or management can be in contravention of education law or employment law. We will make it clear to any submitting authority, whether trustees or boards of governors, that it is proper for the ethos of a school to be reflected in its scheme of management and its scheme of employment — within the limits imposed by the law.

1628. For example, it might be proper in a recruitment exercise to test candidates’ knowledge and understanding of the ethos of a school, but it is not possible to limit unlawfully the eligibility of candidates outside that.

1629. The Chairperson: What is the paramount importance for stakeholders? It seems that some sectors, which I will not name, are more interested in the preservation of their institutions than in delivering good education. Who are the stakeholders to whom the paper refers? Why does the Department feel that it is necessary to amend clause 3 now? I have not concluded whether I think that it is necessary to amend it.

1630. Mr Stewart: Neither have we.

1631. The Chairperson: When the Department brought the Bill to us, the perceived wisdom was that clause 3 was as it should be. However, due to the views of stakeholders, it seems that concerns on clause 3 have been raised.

1632. Mr Stewart: I have no difficulty advising the Committee which stakeholders made the representations, because I am sure that they will make the same representations to the Committee if they have not already done so. The trustees of Catholic schools and the Irish-medium sector both wanted that change, because they wanted the employment scheme to reflect their educational ethos. In Irish-medium education, for example, a school’s trustees and board of governors want to ensure that, in order to assess suitability for employment, candidates understand the immersion model of education that is provided in their school, how it operates, its intended benefits and how it delivers a quality education.

1633. Similarly, the Catholic trustees made the point that Catholic education is not education for Catholics; rather, it is a form of education that reflects the Catholic ethos. They expect to be able to — as they currently do — test candidates’ knowledge and understanding of Catholic education. That does not mean that only practising Catholics are employed in Catholic schools. People in that sector often quote a particular example of a large Catholic post-primary school in which the principal is the clerk of session in his local Presbyterian church. On appointment, that candidate was tested, and the school was entirely satisfied that he understood and appreciated the ethos of Catholic education, the wider ethos of faith-based education and was capable of presiding over its delivery in the school.

1634. Those representations have been made to the Department. They are not unreasonable, and we are minded to make the change. However, we have not reached a firm conclusion, and, I am sure that the Minister wants to know the Committee’s views on that matter in order to help her decide.

1635. Mr D Bradley: I forgot to ask a question about the employment issue. Will you discuss the sample schemes of employment with the teachers’ unions?

1636. Mr Stewart: Yes.

1637. The Chairperson: I want to tease the issue out further. Is there any suggestion that the Northern Ireland Commission for Catholic Education or the trustees will issue a legal threat if the legislation is not amended?

1638. Mr Stewart: No, I am not aware of such a suggestion.

1639. The Chairperson: I am concerned that the controlled sector — the Cinderella of education in Northern Ireland — is being left out on a limb and up in the air. Your submission states that “further consideration is required". Every time that the Committee discusses the controlled sector, officials use language such as “we are discussing", “we are looking at" and “we will consider". Nothing seems to happen proactively in a sector that comprises £2·3 billion of the estate and is the largest sector in educational provisional in Northern Ireland. It always takes second place, and I am becoming concerned at how the controlled sector is being treated.

1640. You mentioned two sectors, and I would love to not be in a situation where we must deal with so many sectors. However, some people have insisted for years that they must have the right to have their own sector. You said that the Department is considering amending clause 3, but we do not know what will happen in the controlled sector. You submission states that:

“Further consideration is required on whether the submitting authority role ought to be assigned to the new ownership body for controlled schools".

1641. We do not yet know how that body will look or what its membership will be. Moreover, we are not yet aware of the issues of the sectoral body, the support body, the advocacy role and the ownership. That is yet another problem that is laid at the door of the controlled sector and is going nowhere.

1642. Mr Stewart: I agree with almost all the points that you raised. However, I would not equate the need to address those issues and consider them carefully with putting the controlled sector in second place. You are right to raise the list of points that have yet to be determined about the ownership body. Given that Committee has not yet been given a clear picture of what the body will look like, it might well have been right to be concerned, if, this morning, I had said either that the decision was to give that role to the body or not to do so.

1643. I raised the question in the paper because, if one followed the logic earlier in the paper without questioning it at all, one would assign that role to the controlled schools’ ownership body. However, I raised the issue, and I invite the views of the Committee before we come to any conclusion, because we must consider whether that role would fit with the other functions that we want the body to discharge. The answer to that is not yet clear.

1644. On the one hand, the body could be restricted to being very narrow and very technical, with little, if any, other function than that of ownership. On the other hand, it could have a broader range of functions, one of which might be ownership, and another of which might be the nomination of some governors. That would change the nature of the body quite significantly.

1645. The Department has genuinely not yet reached a conclusion on that issue, and the earlier paper that set out those matters is still undergoing consultation. I do not want to give the impression that the Department regards those issues as unimportant, or does not want to address them expeditiously. We do, but we genuinely want to hear the Committee’s views before we come to any conclusion.

1646. The Chairperson: There are a lot of technical details involved, but a couple of questions must be answered: will the establishment of the ESA, the clauses making provision for employment schemes and the Bill in its entirety result in equality between the sectors in education? Or, will there still be sectors that — because the trustees own their own schools, or for a variety of other reasons — are able to enjoy a privileged position, but that still talk the language of equality even when it does not exist? I listen to people talking about equality, but that is not reflected in what we are hearing this morning, nor is it reflected in a lot of the other details of the Bill.

1647. Mr Stewart: The Department’s aim is to provide for exactly what you suggested — equality. We do not want any school or any sector to be in a disadvantaged position. We will await the judgement of the Committee as to whether the legislation is achieving that. If the Committee feels that it is not, the Department will have to consider those issues very carefully.

1648. There are differences, particularly between the controlled sector and the other sectors. Some of those differences are historical, and some are intrinsic to the nature of a set of publicly-owned schools, as opposed to privately-owned schools. The Department’s task — and it is not always an easy one, but it is essential — is to ensure that that does not give rise to any sort of institutionalised inequality. If Committee members feel that we have not got it right yet or that there are issues that have not yet been dealt with, we are certainly open to suggestions and representations. Our aim is the same as yours. We want every school to be in a position in which the boards of governors feel that they are on a level playing field, and are not institutionally disadvantaged by the school type, school ownership or school sector, and certainly not by any aspect of the legislation.

1649. The Chairperson: I apologise to Members for hogging the discussion, but there is another issue that I want to discuss. We were speaking earlier about the management scheme. Your submission states that:

“The key point to emphasise is that this is a decision for the school. Each school, regardless of sector or type, should have the degree of autonomy that it wishes to have, and that matches its capacity."

1650. What does that mean? It is a very well placed little line that was inserted by the authors of the paper, whoever they were, but what is the thinking behind it?

1651. Mr Stewart: I assure you, on behalf of the author of the paper, that there is nothing sinister.

1652. The Chairperson: I am reassured.

1653. Mr Stewart: We hope that it is a pragmatic recognition of reality. Some schools — particularly the voluntary grammar schools, but also some of the larger Catholic maintained and controlled schools — indicated that they want the maximum level of autonomy, and said that they have a good and capable board of governors and that they want to do as much as they can, but with as little interference as possible from the ESA.

1654. Nevertheless, it is likely that some smaller schools — and this is not a value judgement of them — will wish to have the option of leaving some of those matters in the hands of the ESA, which would act on their behalf, and that is a perfectly legitimate choice. In our submission, we attempted to emphasise that a school’s level of autonomy ought to depend on the level of the capability of the governance of the school. Schools must make that judgement; not the ESA, which cannot be allowed to hand out autonomy as though it were a prize. Schools must decide what they are capable of doing and act accordingly. The ESA’s primary job is to support and advise schools, and when necessary, to challenge them.

1655. Mr McCausland: I do not hold it against the Chairperson for hogging the questioning, because this matter is important and concerns about it must be hammered home. This session is getting to the heart of the issue.

1656. There is a perception — which, in many ways, is valid — that the model is designed to suit the most vocal sectors. Consequently, we may end up with square pegs in round holes, and the controlled sector might be forced to adopt an inappropriate model. Therefore, we must pause for a while in order to thoroughly consider the implications of the proposals.

1657. I do not wish the situation that was described by the Chairperson to arise; whereby, in effect, one sector has preference to, and an advantage over, another. If that were to be the case, the Bill will go nowhere — it will be dead in the water. Decisions taken now will stick for 30 or 40 years, so either we get it right now, achieving fairness and equality for everybody, or we must stick with what we have, because we are not moving. Those matters must be tied down, and we must tease out the implications, because a mountain of information can be buried in a single sentence.

1658. Earlier, you gave an example of a scheme of employment, about which people must understand. Can you give some practical examples of how the ethos of a school might be reflected appropriately in its scheme of management, particularly with respect to the controlled sector?

1659. Mr Stewart: I must confess that that question is difficult to answer. The examples that sectors have put to us tend to relate more to schemes of employment. The only honest answer that I can give is that I cannot think of a specific example in which a school’s ethos would be specifically reflected in its scheme of management, other than, perhaps, in links between a scheme of management and a scheme of employment. As ever, the difficulty with the controlled sector is to ascertain what its ethos is. I do not believe that any ethos spans the entire sector. As we discussed previously, bringing an ethos into being is a challenge for the controlled sector’s representative body.

1660. Mr McCausland: In a sense, therefore, you are being asked to buy a pig in a poke, because, until that question is resolved, you will not know the practical outworkings. Without wishing to criticise you, that is an indictment of the present system.

1661. In a way, there is an understanding of what the religious and cultural ethos of the controlled sector should be. Whether it actually delivers that is another matter. I am interested in the fact that it is difficult to come up with examples. It is clear cut. This is a huge issue for the maintained sector, and it is a huge issue for the Irish-medium sector. We do not know about the controlled sector — although I think that some of us do know — but it is the issue of how that would work out in practice which is causing real concern.

1662. Mr Stewart: We recognise the issue, and we recognise the concerns. However, there is absolutely no desire on the part of the Department to treat the controlled sector differently. The differences and challenges to be faced tend to arise from the fact that there is simply no tradition of operating in this particular way, because there never needed to be a tradition within that sector. It has been a publicly-owned sector which has been controlled and managed by education and library boards. Therefore, many of the issues of ethos or autonomy have, if you like, been dealt with on behalf of the schools by their parent bodies.

1663. We are now trying to move to a situation in which schools have much more autonomy. However, that needs to be influenced, and contributed to, by sectoral and individual ethos. We are trying to create something within a sector that did not exist because there was no need for it. Clearly, there is a need for it now, for the reasons that Mr McCausland has given, which is to ensure that we have equality of treatment and opportunity. However, that is difficult, and it will take time. I do not claim to have a magic solution that I can bring to the Committee, and it would be wrong for me to do so. Nevertheless, we recognise the concern, and we will continue to work in that area to try to find a solution.

1664. Mr McCausland: The phrase “it will take time" concerns me. That would, effectively, be like asking me to buy the pig in the poke. I will not be buying anything until those issues are tied down. It cannot be left until the end of the year in the hope that a working group will have created a structure. The matter needs to be sorted out now before any Bill goes through the Assembly.

1665. Mr Stewart: I understand the concern. However, the Committee might be equally concerned if I were to come along and say that we had drawn up an ethos for the controlled sector over the weekend and that we are going to impose it. I am not certain that that sector, or anyone in it, would have much confidence that we would get it right the first time.

1666. Mr McCausland: I have said on three or four occasions that if one considers the matter as a human-rights issue — the rights of the children — and an equality issue across sectors, it is not too difficult to work out the answer. The Department has been reluctant to do that.

1667. Mr Stewart: I am intrigued as to what the answer is.

1668. Mr McCausland: The Department has been reluctant to deliver on its obligations to children in the controlled sector.

1669. The Chairperson: I am worried too that we may have a situation in which we have put the cart before the horse. We are being asked to buy-in to a structure that would allow the ESA to be the owner of the controlled estate — albeit that is not the preferred option for the Department — then, at some time when the issue has been sorted out and we have been able to get agreement, the ownership would be transferred to the body that would own the controlled sector. However, we are not sure as to what the relationship of that body would be to the controlled sector. There are far too many ifs and unknowns.

1670. We also have two other sectors — the maintained sector and the Irish-medium sector — that have clearly said that clause 3 is unacceptable and has to be reworded. They have said that they have their ethos and want to maintain their identity and preserve who they are.

1671. I concur with Mr McCausland’s points. We want to ensure that the Bill leads to equality. However, there is not even equality in the way in which the different sectors are being treated in the process. The subgroup of six to eight people is not even established yet. That has to happen.

1672. The point has been made on several occasions in this Committee that the controlled sector is starting at a very low base compared with other sectors, and it has a long way to go. However, judging by where we are now, the controlled sector does not have much time. A gun has been put to its head, and it is being told that it must get up to speed or else the ESA will look after everything. To be honest, no one in the controlled sector has any confidence that the ESA will look after their interests and provide for them. Those are serious questions to which we must have answers. When will the Department take seriously the issues that affect the controlled sector and inject equality into the process? To date, that has not happened.

1673. Mr Stewart: I assure the Committee that the Department takes those matters seriously now. We want to address the issues that have been raised. It would be wrong of me to claim that I can address them in a matter of weeks; it will take time. Nevertheless, the timescale is not as stark as you have portrayed it, Chairperson. Yes, we want to ensure that come 1 January 2010 — as the Committee has encouraged us to do — we do not leave the controlled sector lagging behind the others. However, that does not mean that by 1 January 2010 there has to be a sectoral ethos that is set in stone for ever. The ethos of that sector, like that of any other sector, will continue to develop and evolve as the sector itself continues to develop and evolve. Our job is to ensure that it has the capability and the capacity to do that.

1674. As far as confidence in the ESA is concerned, I cannot comment on the views that people in the controlled sector might hold; they must do that for themselves. We are not asking them to have confidence in the ESA to represent them or advocate on their behalf; we want to ensure that people in that sector are able to do that for themselves. However, we want to ensure that the ESA understands all the sectors, treats them with equality, and discharges its functions in an efficient, effective and fair manner to all sectors. That is what we will aim to do in the legislation.

1675. Mr McCausland: You can forget about 1 January 2010 unless you get this right. No one will vote for it in the Assembly.

1676. Mr Stewart: We are all subject to the will of the Assembly. As I said, we wish to expedite this matter. We share the same aims and concerns as the Committee, and we are happy to work with you on the legislation. I am happy to take any particular suggestions that you have back to the Minister about how we might progress the issue. I am intrigued by the solution that you half-offered to me earlier; I would not mind hearing more about that.

1677. Mr McCausland: It is a matter that I touched on several months ago, and I will come back to it again with you.

1678. Mr B McCrea: It has been interesting listening to folk who have raised many of the concerns that I already voiced. As Edwin said, the problem is because you speak very nicely about things and you are such a nice chap, it would be hard to —

1679. Mr Stewart: I hope that the Hansard report will record that as well.

1680. The Chairperson: For the second time, Chris, yes.

1681. Mr B McCrea: It strikes me that this is a sugar-coated poison pill. In all such issues, the devil is in the detail, and that is where the problems arise. Your submission states that:

“In preparing schemes, submitting authorities must take into account any guidance produced by the ESA. Guidance does not carry the same weight as legislation, nor is there a requirement for absolute adherence. However, it cannot be unreasonably ignored."

1682. There is always a “however". It goes on to say:

“The ESA may approve schemes, or modify them if they are not consistent with education law, or if they failed to take account of guidance."

1683. Despite all the smiles, and “don’t worry, we trust you, it’ll be OK", when this Bill becomes law, it gives the ESA, driven by ministerial directive, carte blanche to do what it likes.

1684. Mr Stewart: I disagree with you, and your interpretation of that. In the paper, I tried to convey the fact that guidance is guidance. It is not the same as legislation, and it is not the same as direction. Neither the Department nor the ESA could, even if they wanted to, insist on any school following guidance to the letter. The test — if there needs to be a test in cases of dispute — is always one of reasonableness. A court would consider the actions of the ESA and of a board of governors to determine whether those actions are reasonable.

1685. If we attempted to put something into guidance which was unreasonable, it would not stand. If we attempted to follow an interpretation of guidance that was unreasonable, it would not stand. If we attempted, unreasonably, to compel a board of governors to take a certain course of action, it would not stand, and it would have very clear and simple recourse to the courts to stop the ESA.

1686. Courts take a very dim view of Departments or public bodies not understanding the limitations of their powers in relation to guidance. In the paper, I was simply trying to convey to the Committee that the Department understands the limitations of guidance and what it means in the circumstances.

1687. Mr B McCrea: Are you familiar with the case of Pepper v Hart?

1688. Mr Stewart: There is a response to that along the lines of: in the pubs and clubs of Antrim, they talk about little else. However, I am afraid that I am not familiar with that case.

1689. Mr B McCrea: I invite you to consider the case of Pepper v Hart and the subsequent judgement made in the House of Lords in 2003 in the case of Wilson and others v the Secretary of State for Trade and Industry. The important issue that that judgement raised is about whether the deliberations — the words that come from people such as you or the proponents of Acts — form part of the overall Act.

1690. We have talked about explanatory notes and guidance as being part of Bills, but in the final part of the notes that I have, and I will stand corrected, is that the object is to ascertain what the intention is as expressed by the words enacted. Guidance, explanatory notes, and warm words said in these Committee meetings and being chucked around in the Assembly count for nothing. Unless it is written down in the Bill and enacted, it has no validity. As the Chairperson said, there are far too many “ifs, buts, maybes" and “we will deal with this later" for us to pass anything that is in front of us.

1691. I will say what the Chairperson has been too gentlemanly to say and I will take the flack for it. There is a concern that those from the maintained sector are worried about employing Catholics, because they think that it is part of their ethos. It could even be said that the Irish-medium sector wants to make sure that they employ people who agree with them and that that is the way forward. That may not be an unreasonable position in itself, but we will reach a situation whereby we will have institutionalised inequality. The impression that one gets is that one side is governed by doing what is equal and fair — whatever that side is — and that the other side has got an advantage because it has carefully included things under the guidance of ethos. That will not stand.

1692. The Department will have had submissions from people other than those who are in those sectors, including representatives from the governing bodies association (GBA), the Assessment and Qualifications Alliance (AQA) and whomever, who will make it quite clear that the appointment of their teachers is central to them as well.

1693. Unless we get firm detail, written down in a Bill — I am sorry, I cannot speak for the others — we are not going for this. I have expressed my reservations to you before, and I restate them for the record.

1694. Mr Stewart: There were a number of points that I could respond to, but the theme running through the comments invites me to comment on the motivation of some of the sectors in the representations that they made. You will understand that I will not do so, because I am not in a position to do so.

1695. In effect, you are arguing that the Department should move some of the detail of guidance and place it on the face of primary legislation in order to provide certainty. That is a perfectly reasonable argument, and it is one that the Assembly may wish to consider. We will follow the will of the Assembly in that regard.

1696. I will not argue with your interpretation of the case law, because I have pleaded in defence to the Committee many times that I am not a lawyer. Certainly, the principles that we follow are as instructed to us.

1697. A court will always consider the legislation first and foremost and use the interpretation of a normal and right-thinking individual. Where there is doubt, which can happen occasionally with even the best-drafted legislation, a court or tribunal will examine the proceedings in Parliament, or in this case the Assembly, to fathom its will when it passed the legislation.

1698. When interpreting guidance, a court or tribunal will examine policy statements or utterances by officials or Ministers to determine the intention behind legislation. We cannot rely on the defence that what we might say to the Committee is different from what is in the guidance: if I make a comment about guidance, a court or tribunal can take that into account when interpreting what the guidance was intended to achieve.

1699. Mr B McCrea: I invite you to check with your legal department, because a House of Commons standard note states that:

“Following the decision in Pepper v Hart in 1993, if primary legislation is ambiguous or obscure

— And we are making a fair stab at that —

“the courts may in certain circumstances take account of statements made in Parliament by Ministers or other promoters of a Bill in construing that legislation."

1700. The House of Lords contradicts that and says that what is enacted is the will of Parliament — or in our case the Assembly — and that is the issue. Chris, you can check those references.

1701. We need detail, because the constructive ambiguity approach will not work — people do not trust the ESA. I am not being critical of the ESA’s objectives on efficiencies, but fundamental issues are emerging, and unless they are dealt with in the legislation, you will have difficulties with your deadline for the passing of the legislation.

1702. Mr Stewart: I understand that, and I am relieved that we agree on the interpretation of the case law. You are saying that there is neither consensus nor trust on some of the detail appearing in guidance and that you want to see it appearing in primary legislation. If that is the will of the Assembly, it can be done, and you are right that it will have implications for the timescale of the legislation.

1703. Mr B McCrea: I invited you to consider the case law before you say that we agree, because there was the case of Wilson and others v Secretary of State for Trade and Industry in 2003.

1704. We want the detail in the primary legislation, because we want to know what everything means. Only then will the Bill have a chance of progressing.

1705. Mr Stewart: I note the Committee’s views.

1706. The Chairperson: It is welcome that we have a document from the Department that states:

“Guidance does not carry the same weight as legislation, nor is there a requirement for absolute adherence."

1707. That might be in contradiction to the perceived wisdom that exists about other guidance that will be issued over coming weeks.

1708. Mr Stewart: I could not possibly speculate on what you might mean.

1709. The Chairperson;

1710. However, we will not stray into that debate again today, but it is good to note that.

1711. Mr D Bradley: The Minister announced a review of the education workforce after the classroom assistants’ dispute. Will that affect the work on employment schemes?

1712. Mr Stewart: Not that I am aware of, although I am not familiar with the terms of reference of that review. I will check that and get back to you.

1713. The Chairperson: The terms of reference for the review are set out at tab 4 of the Committee folder on page 155.

1714. Mr D Bradley: Thank you.

1715. The Chairperson: The next issue is the schemes of management. After that, we will address boards of governors, which is a huge issue — we will not curtail the discussion on that, so we may have to return to it.

1716. Mr Stewart: Clauses 30 to 33 focus on schemes of management, which will be the central governance arrangements for all grant-aided schools.

1717. The schemes of management will cover membership, the procedures of boards of governors, the day-to-day management of schools, the respective roles of boards of governors and principals and the composition and role of any committees of boards of governors that may be established.

1718. The clauses are similar in wording and construction to clauses 4 to 7 on employment schemes, and they will operate in a similar way. There will be a requirement on schools to draw up schemes of management, having regard to guidance produced by the ESA, for the ESA to approve those schemes with or without modification and for the schools to follow the schemes as they are in place. That is similar to the effect of the legislation on schemes of employment, which, in this case, is not such a new phenomenon. Provisions are already in place in articles 9A to 9D of the Education and Libraries (Northern Ireland) Order 1986, which will be replaced by those provisions when the Bill is enacted.

1719. The Chairperson: You referred to the provisions in articles 9A to 9D of the 1986 Order. How precisely do the new provisions in clauses 30 to 33 compare with the existing provisions? Are there any new provisions?

1720. Mr Stewart: No. The wording may be slightly different, but the effect is very similar. There is no significant change in that area.

1721. The Chairperson: We move to the issue of boards of governors, which is covered by clauses 34 to 36 and clauses 47 and 48. I remind members that we are not yet considering the clauses in detail; we will return to consider them individually. We want to consider the underlying policies that inform the clauses.

1722. That is why, despite some members’ concerns, we wanted an extension to the Committee Stage; we wanted to ensure that we had enough time. Next week, I hope to provide the Committee with an outline of how we will consider the clauses. As yet, we do not have all the responses from those with whom we need to consult.

1723. Mr Stewart: I am glad that you told me that today’s discussion was broad-brush rather than detailed.

1724. Clause 34, on which we touched last week, stems directly from the Department’s policy on raising standards, as set out in the ‘Every School a Good School’ policy. The clause aims to ensure that there are clear responsibilities throughout the education system — in this case on boards of governors — in relation to raising standards. The clause proposes two duties for boards of governors: the first is to exercise all their functions with a view to promoting high standards of achievement; the second is to co-operate with the ESA in the exercise of its functions in relation to raising standards.

1725. I draw members’ attention to the lack of the ESA’s powers in that regard. There is no power for the ESA to direct boards of governors in relation to that duty or in the related matter of the exercise of their employment functions. As we discussed at last week’s meeting, that reflects the policy of autonomous, self-improving schools, supported and challenged by the ESA but not directed or controlled by it.

1726. Clause 35 amends the provisions on the composition of boards of governors of various types of schools. It is a long and difficult clause and a taxing read that will challenge anyone’s powers of mental arithmetic. The net effect is, however, quite simple. Some governors are currently appointed by the Department or by the education and library boards, but, in future, those governors will be appointed by the ESA. That group of governors will be known as community governors, who are defined as:

“persons living or working in the local community".

1727. The important point to emphasise is that the composition of boards of governors is otherwise unchanged. That includes the right of the Transferor Representatives’ Council (TRC) to choose governors for controlled schools.

1728. Clause 36 merely removes the barrier on part-time teachers serving on boards of governors. Clause 47 is on different territory, and it relates to articles 17 and 18 of the Education and Libraries (Northern Ireland) Order 2003 on child protection.

1729. Our aim is to ensure that there are clear duties and responsibilities on child protection throughout the education system, and also an effective means of enforcing those duties and responsibilities. It is, therefore, because of its significance, the only provision in the Education Bill — or indeed in existing legislation — that would give the ESA power to direct a board of governors.

1730. Clause 48 is the companion to clause 47; it places a duty on boards of governors, and other education providers, to co-operate with the ESA in the discharge of its child-protection functions.

1731. The Chairperson: Under clause 35, would governors, who were previously appointed by the Department and by the education and library boards, in future be appointed by the ESA? In light of our discussion about defining ethos, it seems that there is a defined ethos in the maintained sector and in the Irish-medium sector, but there is an obscure, bland, undefined ethos for the controlled sector.

1732. Will the community governors have to be trawled for and considered as suitable candidates in the light of ethos as well, or will the sole criterion be that they live and work in their community? People who live and work in a local community could be as completely averse to the ethos of a school as I am to — I had better not give an example.

1733. Mr Stewart: Hansard is listening, Chairman.

1734. The Chairperson: There is a worry that such people will be appointed. If there was a legal challenge to an appointment that had been made at political or ministerial direction, the courts could say that since the appointment was competent under law there was nothing that they could do to change it — because the law is vague and ill defined.

1735. Some people could be appointed to the board of governors of a school solely because they are being directed by a political aspiration to influence and change the nature, ethos, direction and decisions of that school. That would create confusion and confrontation in the boardrooms of schools where, to date, there has been harmony. Despite all the challenges and difficulties, there has been no problem with the people who sat around the governors’ table.

1736. Mr Stewart: We agree entirely. We must prevent such a situation. The only formal requirement in the legislation is the one that you pointed to: the definition of community governors. However, in future, as at present, when applying to serve as governors, applicants are asked to indicate the school or type of school in which they wish to serve. Where possible, an attempt is made to match preference, and there is always, and will continue to be, a legal requirement for consultation with schools when governors are being appointed to ensure that there is no disharmony.

1737. It is not the Department’s intention to do anything other than appoint governors who have an understanding of, and an empathy with, the ethos of the schools to which they are appointed, and, beyond that, to appoint them on the basis of their capability and competence to run a school effectively and to discharge a very important public service.

1738. I recognise your concerns; they have been expressed to the Department by every sector on that issue. I say to those sectors what I say to the Committee, as well as telling them that the Department could make such appointments now if it wished, since the Department and the education and library boards appoint governors to schools. If the Department had an improper purpose in mind, it could be achieved at present just as easily as in future. However, we have no improper purpose in mind.

1739. The Chairperson: A Bill should be about getting things right and addressing problems and deficiencies that have been experienced in the past. The issue involves every school — controlled, maintained, Government-maintained and integrated. How difficult would it be to amend clause 35(2)(c)? That is essentially the nub of the matter. That clause states:

“ ‘community governors’, in relation to a school, means persons living or working in the local community;".

1740. Surely it would not be difficult to amend that clause to reflect the Department’s intention. The Department’s intention — no matter how good — is not worth the paper that it is written on if it is not in the Bill. We will not be convinced that that intention will be fulfilled unless we see it in the Bill. Some thought should be given to how clause 35 can be amended to reflect the Department’s intention and the worries of every sector.

1741. Mr Stewart: We are happy to work with the Committee on proposals to amend or expand the definition. It would be an unusual legislative approach to state what a Bill will not do; Legislative Counsel would advise us that that is not a necessary step. However, we are more than happy to consider other dimensions that you feel ought to be reflected in the definition.

1742. The Chairperson: The Department has concerns about clause 11, and amendments will be made to it. Yet, despite all the worries that have been expressed, the Department seems to have no concerns about clause 35. The Department seems happy not to consider amendments. You received a roasting — to put it mildly — from two sectors about clause 35.

1743. Mr Stewart: We have been roasted by all sectors. [Laughter.]

1744. The Chairperson: They have not all started yet; they are only warming up. It seems as though the Department will not consider doing anything about the issues that have been raised in respect of clause 35 unless they are raised by the Committee.

1745. Mr Stewart: The difference is that some sectors suggested a beneficial change to clause 11; we did not consider the suggestion to be unreasonable, and it is one that we are keen to consider. Several sectors expressed genuine concern about clause 35, but there is no evidence that what they fear is happening — even though it could happen under present legislation. There is no evidence to support change.

1746. We are happy to consider any other dimensions that the Committee feels ought to be reflected in the definition of community governor. The challenge in drafting legislation is to be precise in what one is trying to define. It would be very difficult — indeed, almost impossible — to use the word “ethos" as a definition in the Bill, because ethos is an extremely difficult concept to define, measure or test in court. We do not want to end up with imprecise legislation such as the case law to which Basil referred.

1747. The Chairperson: With all respect, it is not difficult to do it with employment schemes: clause 3 states that there will be a change of ethos. It seems that one can have a definition in an employment scheme but not in a Bill.

1748. Mr Stewart: There are clear differences between employment schemes and Bills. Legislation requires a unique degree of precision and clarity in the meaning of words and phrases; that precision simply does not exist anywhere else.

1749. It will be extremely difficult to arrive at a definition of “ethos" that can be included in legislation.

1750. Mr McCausland: In the Catholic sector, the committee for appointing boards of governors is simply given a list. The choices are predetermined; they do not pick one person out of a choice of 10; they are told whom to choose. The Catholic Church thereby ensures that the ethos of its sector is guaranteed. We are simply saying that the ethos of schools in the controlled sector must be guaranteed — and I am sure that we will get that sorted out — as it is in the Catholic sector.

1751. There is an issue about the balance of representation on boards of governors. Churches have largely withdrawn from some inner-city areas of Belfast — and I do not think that that has happened elsewhere — in which schools in the controlled sector are situated. Often, the appointment of a Church representative to a school’s board of governors in such an area is made for historical reasons, namely that a church was located there 70 years ago. As a result, a bizarre situation occurs whereby Church representatives, none of whom lives within 10 or 20 miles of a school, sit on an inner-city school’s board of governors. The church building no longer exists, but the representatives of that Church make decisions about a school.

1752. I could live with that if only one Church representative were allowed to sit on a board of governors. However, the difficulty arises when several transferor representatives are allowed to do so, because they can become a substantial element on a board of governors. For example, Church representatives on the board of governors of a school in Belfast drove through a fundamental decision. Can you clarify the number of transferor representatives permitted to sit on a board of governors? My understanding is that it varies from school to school.

1753. Mr Stewart: That is correct. The sums can be complicated.

1754. Mr McCausland: It is important that the transferor Churches have their place and want to protect it. However, as has been pointed out before, there are other Churches in the Protestant community. An historical peculiarity should not act as a block to override others.

1755. They seem to have an automatic in-built majority on everything. That probably applies only to schools in inner-city Belfast, because, in the countryside, the same church might have served its community for the past 200 years. Given changes in demography, however, that issue should be examined.

1756. Mr Stewart: I am sure that you are not inviting us to remove the TRC’s right to nominate governors.

1757. Mr Elliott: Just the Presbyterian ones.

1758. Mr McCausland: As I am not a Presbyterian, a Free Presbyterian nor any sort of Presbyterian, I have no view on that. The system needs to be thought through, as people could be making legislation without being fully aware of anomalies that can arise. As you rightly assumed, I totally support the right of the transferors; however, it needs to be monitored in one area.

1759. Mr Stewart: That is a valid point, and it emphasises the importance of the role of community governors, as defined. The role of the Transferor Representatives Council is important, and we have always acknowledged that.

1760. It was never our intention to remove or dilute in any way the TRC’s vital participation. At any one time, the TRC provides us with some 2,000 school governors whom we simply could not replace.

1761. You are right, however, that there are other voices in the controlled sector that must be heard, and that is why the theme running through what we are attempting to do with boards of governors, particularly with the representatives’ council, is to ensure that those schools have a connexion with and understand the needs of the communities that they serve. If that connexion, which in the past was through the Churches, no longer exists, we must find different routes and connexions between schools and the communities that they serve.

1762. It can often be difficult and challenging to get sufficient numbers of people to serve as school governors. Therefore, the Churches, Protestant and Catholic, have a vital role in persuading people to put their names on lists for consideration.

1763. Mr McCausland: One of the strengths of the Catholic maintained sector is the close association between the parish and the school. The representatives who come forward are imbedded in the community; they probably grew up there, worship there and belong to that community. We must find ways to ensure the same rootedness for boards of governors in the controlled sector.

1764. Mr Stewart: I agree entirely; it is a particularly difficult challenge in some inner-city areas.

1765. Mr B McCrea: There is a gaping hole in what you are attempting to do. The appointment of governors is central to the development of autonomous, self-improving schools. Most former governors to whom I speak will not go back, for although we burden them with responsibilities we fail to give them clear guidance and support. We must find a better way to deal with the matter.

1766. You say that you seek proposals from us to encourage people to become governors again. What do you mean by consultation with existing governors? How can an existing board of governors be consulted to ensure that new governors are acceptable?

1767. Mr Stewart: Quite simply by sharing the names with them and inviting their opinions.

1768. Mr B McCrea: What happens when they yes or no, or “we’d rather have Jimmy."?

1769. Mr Stewart: It would depend on the representations that had been made. If a board of governors were to point out to us that the ESA had made a gross error by suggesting someone who is fundamentally opposed to a school’s ethos, we would, of course, think again. However, having spoken to the various sectors and to boards of governors, I am assured that that does not happen under the present arrangements. Nevertheless, although the sectors and boards of governors are satisfied with the outcomes of departmental and, indeed, education and library board appointments to their schools, they are glad that the consultation process exists as a safeguard.

1770. Mr B McCrea: That was then, and this is now. For a long time, education involved relatively little politics with a small “p"; it was administered either by direct rule or there was consensus on the way forward. Nowadays, we are having probably the most highly contested discussion about education since 1921 — people have fundamentally different opinions.

1771. If governors, and not the ESA, are to lead the charge in schools, whoever appoints governors will determine the stance that schools take. Given the disagreements resulting from the various — although legitimate — political agendas, people will be appointed to boards of governors for various reasons. If governors, rather than the ESA, taking the lead is to be the cornerstone of the new arrangements, you must consider the matter in more detail and come to us with schemas for how things should work.

1772. Incidentally, when we attempt similar balancing exercises for district policing partnerships, we are inundated with people who want to get involved.

1773. There are mechanisms set up to ensure that a balance is achieved. I am not saying that we have to do it that way, but we should consider it.

1774. There are similar examples in the Health Service of getting different representatives involved. If we are keen to get local people involved in the ESA, we will have to find a way of achieving that. It is a challenge for you, and you will need to come back to it. The situation with boards of governors is not working.

1775. Mr Stewart: We have 1,251 grant-aided schools, and that means that we have approximately 10,000 school governors. The challenge for the ESA and others is to find 10,000 willing and capable people to serve, in an important voluntary capacity, this important public service. Even if we wanted to introduce political vetting for school governors, I am not certain that we could.

1776. Of those 10,000 governors, some will support some aspects of education policy at any given time, and some will have different views on aspects of education policy at any given time, and that may vary over time.

1777. We are interested in the capacity of those individuals to lead and manage the schools.

1778. Mr B McCrea: I understand your Civil-Service approach, but the same will happen with the ESA as happened in such groups as the district policing partnerships in which organisations and political parties encouraged their activists to get involved. That is right and proper, but it has the potential to politicise an issue. You may not do it, but that does not mean that it does not happen.

1779. You said that there had not been problems before and that it worked out all right. The challenge in framing legislation is that, in the future, other Ministers or other people may take a contrary view. There is significant alarm among the governors throughout the entire school estate — irrespective of sector — about what they are being asked to do. Unless that is sorted out, we will run into the sand on the issue.

1780. There is no point in our coming backwards and forwards; we will not sort it out here and now, but you should realise that there needs to be a more detailed approach to how school governors of all sorts are appointed, selected and encouraged. The Department should focus its attention on that.

1781. I close on the issue that has returned about the ambiguity and fudge. Paragraph 27 of the submission relates to clause 34. It states that:

“The clause will place two duties on boards of governors: to exercise their functions with a view to promoting high standards of achievement; and to co-operate with the ESA in the exercise of its functions in relation to raising standards".

1782. I cannot see a problem with the first point, but what does the second point mean? What is the definition of “to co-operate with the ESA"? What does “co-operate" mean in that context?

1783. Mr Stewart: In the past, some schools have refused to co-operate with the Education and Training Inspectorate and education and library boards. Some schools have refused to allow representatives from the education and library board to be present at meetings with the Education and Training Inspectorate to discuss the outcome of school inspections. It is that refusal to co-operate that we need to address through the duty that has been proposed.

1784. Mr B McCrea: That is a reasonable condition, but one could also interpret “co-operate" to mean that ESA will, gently, tell schools what it expects them to do and that their co-operation would be appreciated. In other words, schools will have to do what the ESA tells them to do.

1785. Mr Stewart: There are no powers for the ESA — and that does not constitute a power for the ESA — to direct a board of governors. We do not expect that the ESA’s first approach will be to gently ask the schools to do as it says. Its first approach should be to gently ask the schools what they propose to do. If that answer is not satisfactory, the ESA may consider taking further action or ask the Department to take further action.

1786. I want to be clear on this matter: the ‘Every School a Good School’ policy gives no strong or draconian powers to the ESA. The strongest powers, such as the ability to change schools, close schools and remove boards of governors, are in existing legislation and rest with the Department. There are no proposals to place those powers with the ESA.

1787. Mr B McCrea: That is exactly my point. It is smoke and mirrors. You say that the powers lie with the Department rather than the ESA. However, it is not inconceivable that the ESA will say that it is having difficulties with a particular school, whereupon the Department will exercise its powers. The Committee received many submissions from people who are concerned about the potential for micromanagement by the Department or the ESA. You may understand the difference in structural issues, but, frankly, people do not see it.

1788. I fear that you need to examine the legislation in more detail. If what used to be called education and library boards and the inspectorate should combine, we have to outline their responsibilities. I know that it requires much labour, and I know that it is not easy. However, in the current climate, you will have to adopt that approach.

1789. Mr Stewart: I understand that point. On your earlier point, you face the dilemma that every legislator faces — too much power or too little power. The concern has been the lack of clarity of responsibility of standards and powers throughout the education system. In the past, the Department’s significant powers have not been used to address the worst-performing schools.

1790. In the past, our approach has been based on providing additional resources and giving schools an inordinately long time to address the serious issues that they face. Meanwhile, one or more cohorts of children pass through those schools and are failed by the education system. We aim to move to a different situation in which responsibilities and powers are clear and in which there is scope for a graduated response that begins with help, support and advice but, in the most extreme circumstances, can result in the prompt closure of a school.

1791. Mr B McCrea: What is the inspectorate’s role?

1792. Mr Stewart: The inspectorate is the key driver. Any such decisions must be evidence-based, and the Education and Training Inspectorate is the primary provider of evidence.

1793. The Chairperson: The inspector will make a presentation — which will cover clause 37 — on his report to the Committee. We will seek the inspector’s views on the matter.

1794. Mr Elliott: Chris said that the powers that lie with boards of governors and the Department will remain there in order to maintain the status quo. That is completely different to what the Committee was led to believe a couple of weeks ago about community planning. I thought that more functions, such as community planning, would move to the centre of the ESA. We can, if necessary, check the Hansard report. However, there was an emphasis that decisions on community planning could be taken by the ESA above the heads of boards of governors. Is that accurate?

1795. Mr Stewart: Do you mean area planning of curriculum and the educational estate?

1796. Mr Elliott: Yes.

1797. Mr Stewart: We draw a distinction between the running of individual schools, which is, under our policy, a matter for boards of governors, and the planning of education, where we want to move away from the separate sectoral or individual school approach to planning that we have adopted in the past. We will move to a much more planned and managed market. The ESA will be the planning authority for education. However, even at present, any development proposal for a new school, a school closure or a change in the character of a school is decided by the Department and the Minister. In that sense, it is not a change.

1798. Mr Elliott: Your submission says that child protection is the only subject in the Bill on which the ESA will have the power to direct boards of governors. Where does the responsibility lie if there a misdemeanour, or if something untoward takes place? Does the responsibility for the child protection issue lie with the board of governors or with the ESA?

1799. Mr Stewart: Clauses 47 and 48 do not change the responsibility. The duty and responsibility that goes with them rests firmly with the board of governors. The point of the clauses is to introduce a policing function to ensure that those duties are properly discharged. Our concern was that it was not sufficient to have clarity of responsibility. That, in itself, does not stop things from going wrong, and, if something were to go wrong, it would not be sufficient to come along afterwards and have an easy and effective means of apportioning blame. Therefore, we need the means to ensure that things do not go wrong in the first place. That is why we felt that it was appropriate to give the ESA strong powers to direct the board of governors in that respect.

1800. Mr Elliott: I have a concern. You will appreciate that although the power is moved to the ESA, the responsibility does not move to it. The responsibility remains with the board of governors. If the powers move, why does the responsibility not also move?

1801. Mr Stewart: It would not be feasible to transfer the responsibility of the board of governors for the day-to-day running of a school to the ESA, unless we wanted to go down a road that was contrary to the policy that we are pursuing, which is to give schools much less autonomy, or rather, no autonomy, and for the ESA to have much more centralised control. A number of members have impressed upon me that they do not want that to happen.

1802. Mr Elliott: We are talking about the one issue, which is child protection. I do not see why that issue should not be separated, as you have separated other issues for direction from the ESA.

1803. Mr Stewart: The issue relates to the way in which the school carries out its daily business, the policies and procedures that it has in place for access to children and young people — supervised and unsupervised — and the level of training and understanding that staff may have. Those matters are a school’s responsibility, and they are in the day-to-day control of the board of governors. In that sense, it would not be feasible or desirable to try to move that to the ESA. However, it is important that the ESA is in a position to ensure and challenge a board of governors, where necessary, in relation to the discharge of those responsibilities, and, more importantly, to provide the advice, help, support and guidance that goes along with that. That is why there is the corresponding duty on the ESA in relation to child protection.

1804. The Chairperson: We will have to examine that issue again in more detail.

1805. Do you see any problem with the body that will be established to own the controlled sector nominating governors, rather than the Department, or what would have formerly been the board? Aligned to that, comments were made earlier in relation to getting equity. How do you see that being played out in the maintained sector or in any other sector? In the provision, all schools are being treated the same with the appointment of community governors, and the only requirement will be that they live and work in the local community. That applies to all schools.

1806. Mr Stewart: That is taking us into slightly different territory. It is what we referred to in policy papers as “foundation governors" who might be appointed or chosen by owners of schools to represent the ethos and character of a particular school. In the policy paper, we floated a suggestion that the controlled schools ownership body might be given a role in that respect. Again, it is asking whether we should follow without question the logic that would run throughout the rest of the arrangements and draw the equivalence between that body and the owners of schools in other sectors.

1807. There are two sets of issues with that. One is whether we — and, we, in this case, is the Assembly — wish that body to have merely the narrow role of ownership and stewardship over physical assets, or whether we wish it to have a broader range of functions of which that might be one. The difficulty with that, which relates to the point that Nelson made, is that it will be a statutory public authority. The issue is the extent to which, under legislation, we can make the body as representative, as some members may wish, of the communities and schools with which it deals, bearing in mind the clear restrictions on the legislative competence of the Assembly in section 6 of the Northern Ireland Act 1998.

1808. The Chairperson: To clarify, are you saying that that is not preferable?

1809. Mr Stewart: I am asking the question and inviting members to give their views. For example, a statutory non-departmental public body might be established to take ownership of the controlled schools estate. We could not give the TRC or any other particular group of churches, for example, guaranteed representation on that body’s membership. That is the same difficulty that we ran into with the TRC’s nomination rights on governors. The Assembly simply could not pass legislation to that effect. The Speaker would not admit it to the House. It is beyond the Assembly’s legislative competence.

1810. We solved that problem with governors by leaving existing legislation intact. However, we could not constitute the controlled schools’ ownership body in the way that education and library boards are currently constituted with guaranteed TRC participation. Of course, that does mean that they would be excluded. TRC representatives could be there, having been appointed through a typical public-appointments merit-based process. We cannot make that body representative of any particular community or sector in the way that Nelson would like it to be. We simply do not have the legislative means to do so.

1811. Mr McCausland: Would there be any difficulty, therefore, in having a body that is representative of the community that it serves?

1812. Mr Stewart: I think that there would be difficulty.

1813. The Chairperson: Do you mean that there would be difficulty in making recommendations for the appointment of community governors?

1814. Mr Stewart: Sorry, I may have misunderstood your question.

1815. Mr McCausland: Is there a legislative difficulty in having a body — either the ownership body or the sectoral body — that is representative of the community that is served by those schools?

1816. Mr Stewart: Not with regard to the representative body, because it is not statutory. There would be difficulty with any statutory body.

1817. Mr McCausland: What is required legislatively at Westminster in order to put that right?

1818. Mr Stewart: A change to section 6 of the Northern Ireland Act 1998 would be required.

1819. Mr McCausland: What is the timescale for such a change? Unless there is that change, the matter cannot go anywhere.

1820. Mr Stewart: I am not sure that the timescale is the issue; it is political agreement.

1821. Mr McCausland: The point is, of course, that without political agreement to meet that requirement, there might be a Bill, but there will be no Act. The Minister tells us about equality until we are sick hearing about it. There must be equality for everyone or equality for no one. If ownership of the Catholic sector is in the hands of a body that is represented fully by that community, ownership of controlled schools must reside in a body that represents the community that is served by those schools.

1822. Mr Stewart: Unsurprisingly, the Catholic community is reflected fully in that body because the schools are in the ownership of the Roman Catholic Church. There is a difference between any church and a statutory public authority. We simply do not have the legislative means to make any statutory public authority representative of any one particular section of society.

1823. The Chairperson: Let us be honest, Chris; although they may not know all the details, the public are wise on the issue. They cannot get their heads around the fact that schools in the maintained sector, which receive 95% to 98% — I stand to be corrected — of their funding from public money, have a privileged position, while schools in the controlled sector, which is funded by public money, are subject to certain rules and regulations just because they did not insist on being treated differently in the past. If the aim is to get equality, that is a driving point. The agenda that has been set by the Minister is one of equality, and I can tell you that that is what we will end up having.

1824. Mr Stewart: I understand the issue, but it is one for political debate and discussion, and not for me to answer. The issue for the Department is quite simply the difference in legislation between a private body and a public authority.

1825. Mr McCausland: I accept the fact that it would require political agreement, but could a paper be provided that outlines the process by which that could be achieved, so that we get an indication of the timescale that is required for that legislation. That would then give us better information about when the Bill might potentially become law.

1826. Mr Stewart: If you are asking for advice on how you might secure an amendment to the Northern Ireland Act 1998, that takes us into territory that is the responsibility of the Office of the First Minister and deputy First Minister (OFMDFM), and is well beyond the remit of the Department of Education.

1827. Mr McCausland: I am simply asking for a paper that outlines the practicalities.

1828. Mr Stewart: It may be a very short paper.

1829. Mr McCausland: That may be; it might only be three or four lines.

1830. Mr Stewart: The Committee might find that refreshingly different.

1831. Mr McCausland: I am making the point that this is a fundamental issue — there is no running away from it. There is no point in our proceeding with this — we would be wasting our time unless that matter can be resolved.

1832. Mr Stewart: I note Nelson’s point, and if there is advice that we can provide on that we will do so. However, as I said, it is well beyond the competence of the Department of Education. We can, though, provide advice on where you might get further advice.

1833. Mr D Bradley: The situation that we are in today is partly due to historical circumstances. When Lord Londonderry was the Minister of Education, he wanted all schools to be state schools, and it was the Presbyterian Church that was most strongly opposed to that at the beginning. The transferors at one stage obviously saw an advantage in handing their schools over to the public authority. People may now see that as disadvantageous, but it is part of the history and evolution of education in Northern Ireland.

1834. There are now integrated schools in the controlled sector, I believe that there are one or two controlled Irish-medium schools, and there are controlled schools that are integrated because of demographics.

1835. The Chairperson: There are controlled schools that are predominantly attended by Roman Catholic children.

1836. Mr D Bradley: We are not talking about a homogenous group — that probably makes issues more difficult.

1837. There was a situation in my constituency in which a senior manager of a school was behaving in a way that was detrimental to the good running of the school. It took an extremely long time for that person to be suspended under the present system. His presence in the school over that prolonged period did irreparable damage to the health of some of the staff in the school, as well as to the good running of the school and the education of the pupils.

1838. Under the new legislation, when boards of governors have those powers, is it your view that if someone should be suspended, as was the case in that situation, that that will happen much quicker than it has happened in many cases under the present system?

1839. Mr Stewart: It is difficult for me to comment on particular cases without knowing the circumstances. I do appreciate that such situations can take an inordinate length of time to resolve. I cannot guarantee that the process will be any quicker or any slower under the new arrangements, because I suspect that it is driven primarily by the requirements of employment law rather than education law.

1840. Any board of governors or any principal faced with that situation will want to be able to act quickly, decisively and within the law and parameters of best human-resource management practice at the given time.

1841. In such situations, the role of the ESA will be vital, and the service that it provides to schools must be timely, professional and on hand. Clear advice must be available on tap to boards of governors, so that they know what they can and cannot do, and how quickly that can be achieved.

1842. The Chairperson: There may be a few follow-up questions. Thank you, Chris. Jeff and Peter had an easy run this morning.

1843. Mr Stewart: They will have to carry me out now. [Laughter.]

1844. The Chairperson: Thank you.

4 March 2009

Members present for all or part of the proceedings:
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Mr Edwin Poots

Witnesses:

Mr Chris Stewart
Mr Jeff Brown
Mr Peter Burns

 

Department of Education

1845. The Deputy Chairperson (Mr D Bradley): Good morning, gentlemen — you are welcome back. The session will have three parts. The first will be on clauses 1 and 2— the education and skills authority (ESA) and its functions and general duty. The second p will deal with clause 9 and schedule 2 — the transfer of staff. The third part will be about clause 22 and schedules 3, 4 and 5 — the transfer of assets. I invite Chris to introduce his team and to outline how he intends to deliver the briefing.

1846. Mr Chris Stewart (Department of Education): Thank you, Chairman, and good morning, members. With me today are Jeff Brown and Peter Burns from the review of public administration Bill team. If it meets with your approval, we will make three short presentations covering the material. We will pause for questions between each presentation.

1847. As members will have noticed, I am coughing and spluttering, so I hope that my voice will hold out until the first difficult question, at which point it will probably give up on me.

1848. Clause 1 will establish the education and skills authority as a public authority. The associated schedule 1 contains the range of standard provisions that one would expect for a new public authority. They cover the status, membership, employees, governance arrangements and proceedings, and the finance and accountability arrangements for the organisation.

1849. Schedule 1(2) deals with the membership of the ESA — or what is commonly referred to as its board — and members will be aware that most members of the ESA will be district councillors. The appointment arrangements will involve a merit-based application process that will reflect the principles and the guidance issued by the Commission for Public Appointments.

1850. Schedule 1(7) and 1(8) provide the power to establish committees, including those that will be associated with the local units or teams of the ESA. Members will note that the provisions give the ESA the power to delegate functions to those committees or to employees of the organisation.

1851. Schedule 1(19) deals with the Northern Ireland Assembly Disqualification Act 1975; its effect is that MLAs may not be members of the ESA. That stems from the need to avoid the potential for a conflict of interest, given that the organisation will be accountable to the Minister and to the Assembly.

1852. Schedule 1(20) and 1(21) apply a range of fairly standard regulatory frameworks that members would expect to see applied to any public authority. For instance, the provisions will bring the ESA within the remit of the Commissioner for Complaints and within the ambit of the Freedom of Information Act 2000. As a result of being within the ambit of the legislation relating to the Commissioner for Complaints, the ESA will be a public authority for equality purposes and section 75 of the Northern Ireland Act 1998. It will, automatically, be a public authority for the purposes of the Human Rights Act 1998, because it comes under the definition in that Act.

1853. Overall, the provisions in schedule 1 are similar to those of schedule 1 in the Libraries Act (Northern Ireland) 2008. There are a few differences, which we have summarised for members in the annexe to the paper, but we do not regard any of them as being particularly significant.

1854. Clause 2 defines the functions and the general duty of the ESA. Clause 2(1) is linked to the repeals and amendments in the Bill and will assign to the ESA those functions in existing legislation that lead to transfer from existing bodies, as well as new functions that are defined elsewhere in the Bill.

1855. Clause 2(2)(a) and 2(2)(b) are significant, because they provide an overarching statement — or mission statement — of the purpose of the ESA. They focus on six key dimensions in the development of children and young people: spiritual, moral, cultural, social, intellectual, and physical. They also focus on the three main forms of education: early-years services, which are referred to in the Bill as “educational services"; schools; and youth services.

1856. The key differences from the current legislation are the addition of the social dimension of development and the more explicit recognition of early years and youth services as key components of education.

1857. The Department is considering a possible amendment to clause 2(2)(b) on youth services. On reflection, we do not think that that clause goes far enough or that its language is sufficient in reflecting explicitly the links between youth services and the various dimensions of development as the provisions for schools and early years do.

1858. We may, therefore, propose a redraft in a similar fashion and using similar language to that in clause 2(2)(a), which deals with early years and schools.

1859. Members may ask why we simply do not collapse the two provisions together and add youth services to clause 2(2)(a). However, there is a technical reason why we cannot do that. It would be extremely difficult —well nigh impossible — because of the age ranges of the services that are provided.

1860. Primary and secondary education are provided for children and young people, who, as a result of a couple of definitions in legislation, includes individuals up to the age of 19. By contrast, the age range for youth services is not defined in legislation, but, in practice, includes people up to the age of 25.

1861. For that reason, it would be extremely difficult to combine all those services in one clause. Moreover, the clause assigns to the ESA several other key overarching functions, including planning and education in clause 2(2)(c), supporting and challenging education providers in clause 2(2)(d), and providing advice to the Department in clause 2(2)(e). Clause 2(3) will place a requirement on the ESA to treat all schools equitably. That duty aims to address the concerns expressed by members and stakeholders that the ESA might experience a conflict of interest during the period when it owns controlled schools.

1862. Clause 2(4) will place a duty on the ESA to raise standards and will complement the duty on boards of governors in clause 34, which the Committee discussed last week. Clause 2(5) and 2(6) provides for the ESA to carry out administrative functions under the direction of the Department of Education and the Department for Employment and Learning. At the moment, neither Department has specific proposals in mind, but that clause is included in case we need the ESA to do some heavy lifting on our behalf. Clause 2(8) provides the definition of educational services, which is shorthand for early-years provision.

1863. The Deputy Chairperson: Schedule 1(2)(1) provides for the ESA board to consist of a chairperson and not fewer than seven or more than 11 other members. Does that number provide for the scope of expertise that will be needed to hold the ESA to account?

1864. Nelson and I are members of the Committee for Culture, Arts and Leisure, which has been examining the aftermath of the collapse of the Northern Ireland Events Company and how the Department of Culture, Arts and Leisure should ensure that its arm’s-length bodies are accountable. Part of that process involves ensuring that people on the boards of those bodies have adequate skills, expertise and training to ensure that they can perform their functions properly. Some people might describe the numbers as smallish. Might it confine the degree of expertise or could it be difficult to find the range of skills and expertise that are needed to hold such a large organisation to account?

1865. Mr Stewart: I understand and agree with your point: experience, skills and expertise are very important. The Department thinks that that number strikes the right balance between manageability and, as you rightly emphasised, securing the necessary breadth of skills, competence and experience.

1866. As your question suggested, quality is as important as the number of members on the ESA’s board. For that reason, the Department is clear that the merit principle will feature strongly in the appointment arrangements. We have stressed in the legislation the need to appoint members who have knowledge and experience in education and its various dimensions. We understand your point, and I will relay it to the Minister. We think that the current number is right, but the Minister will want to consider the Committee’s opinion.

1867. The Deputy Chairperson: The Department of Culture, Arts and Leisure has established a review team. Part of its remit is to ensure that people — such as those who will comprise the ESA board — who accept positions of responsibility are properly trained. Why will most of its members will be councillors? Will it be possible to reconcile that with the Bill’s requirement for each member to have experience in a field of activity that is relevant to the discharge of the ESA’s functions?

1868. Mr Stewart: Yes, because the latter point is not an absolute requirement; rather, it is an aim that we will strive to realise. The fundamental reason why most board members will be district councillors is the Minister’s desire to ensure local democratic accountability in the organisation. That proposal was strongly supported in several stakeholders’ consultations.

1869. There was no support for establishing the ESA as a quango, and there was widespread support for democratic accountability and for elected representatives being part of the membership.

1870. The Deputy Chairperson: You also said that part of the duty of the ESA will be to contribute to the spiritual, moral, cultural, social, intellectual and physical development of children. How do you define “spiritual" and “social"?

1871. Mr Stewart: They are not explicitly defined in the Bill, and it would be very difficult to do so. The spiritual dimension is not new; it is reflected in current legislation. The new aspect is the social dimension. The Department aims to achieve a recognition of the breadth of purpose of education; it focuses not merely on the intellect, but on the education of the whole person and on every aspect and facet of their development. We do not propose to define those terms, as it would be difficult to do so. They would mean what one would expect the ordinary, right-thinking person in the street to understand them to mean.

1872. The Deputy Chairperson: Does that not leave those terms open to interpretation?

1873. Mr Stewart: It does, but if ever there is a dispute over interpretation, a court would consider what is reasonable in the circumstances.

1874. The Deputy Chairperson: Clause 2(4) states that:

“ESA shall ensure that its functions relating to grant-aided schools are (so far as they are capable of being so exercised) exercised with a view to promoting the achievement of high standards of educational attainment."

1875. What is the purpose of the caveat “so far as they are capable of being exercised"?

1876. Mr Stewart: That is one of those provision to which there may be less than meets the eye. The ESA will have a range of functions: providing support and training for governors and staff to running its staff canteen. There is not much that it can do to contribute to the high standards of attainment through running its staff canteen.

1877. Mr B McCrea: Chris, I am disappointed in all this. Paragraph 14 of your submission states that:

“Clause 2(4) will place a duty on the ESA in relation to raising standards, and is intended to be complementary to the duty on boards of governors".

1878. There is an equivalence there; in other words, the ESA can come in and deal with things.

1879. Your submission states that the Bill provides for the ESA to carry out administrative functions at the direction of the Department. Who defines administrative? That could mean anything, including staff issues.

1880. There is little point in my labouring the issue. I have tried over the past weeks to tell the Department where I thought reasonable compromises could be made; however, I see none. I would like to place on the record that we are implacably opposed to a Trojan horse. This is not about education; it is about ministerial control.

1881. Although it is slightly contentious, I would like to make a comment about page 159 of the Department’s submission.

1882. Mr O’Dowd: Chairman, are we discussing the presentation or are we discussing Basil’s interpretation of the presentation?

1883. The Deputy Chairperson: There are issues that he wants to raise.

1884. Mr O’Dowd: There are three presentations on the various clauses.

1885. The Deputy Chairperson: Mr McCrea is still discussing clause 1 and schedule 1.

1886. Mr B McCrea: I am referring to clause 1, schedule 1, on page 159 of the Committee’s briefing, if that helps, Mr O’Dowd.

1887. The Deputy Chairperson: Basil, it would be helpful if you referred to the paragraph of the submission.

1888. Mr B McCrea: Ok. Paragraph 19 deals with Assembly disqualification, and paragraph 2 deals with membership. It does not help local democracy if councillors are members of the ESA, because I am not sure about the principle of merit. The Deputy Chairperson also made that point.

1889. I do not understand why Assembly Members cannot be members of the all-powerful board. I could see some merit in it if the ESA were to be merely an administrative vehicle, but it will have powers on spiritual and social matters, among other things. Unless there is cross-party political control at MLA level, it will not work.

1890. The Deputy Chairperson: We have raised that point with you at previous meetings.

1891. Mr Stewart: I will relay members’ concerns to the Minister. Membership of the ESA is a policy decision for the Minister, and her view is that the provisions in the Bill are correct. I understand Mr McCrea’s point, but I can only explain again the purpose behind the Assembly disqualification reference. It is in recognition that, in the Minister’s view, there would be a conflict of interest if MLAs were part of the regional organisation, which would, in turn, be accountable to her and to the Assembly through the Committee. MLAs could end up being accountable to themselves or to one another. The proposals are not unusual; they mirror those for the Library Authority and for most, if not all, similar regional service-delivery authorities.

1892. The Deputy Chairperson: MLAs are also Ministers, but that does not prevent other MLAs from holding them to account. When a Department of justice is established and a Minister for justice appointed, will the Policing Board be dissolved?

1893. Mr Stewart: I cannot comment on that; I have no knowledge of policy in that area.

1894. Mr B McCrea: At some stage, a Department for policing and justice will be set up, and I understand that there will be two Assembly Committees to scrutinise it. We also have a Policing Board. Can we get legal advice on whether there is a potential conflict of interest?

1895. This is the opinion of one Minister. Can the Department find out whether there is a legal impediment to Assembly Members sitting on the regional board of the ESA? Can we seek legal advice on the matter? I would like the Department to come back on that, but I would also like the Committee to seek its own independent legal advice on the issue.

1896. Mr Stewart: There is no legal impediment to Assembly Members sitting on the regional board. The legal impediment would arise from the amendment that would be made to the Northern Ireland Assembly Disqualification Act 1975 if the Education Bill goes through. If, for any reason, that provision were removed from the Bill, there would be no legal impediment and it would be possible for MLAs to be members of the ESA. The Committee may wish to seek legal advice on the matter, but that is where we see the legal impediment arising. It is a policy decision on the risk of conflict of interest.

1897. The Deputy Chairperson: Under the current system, MLAs are also members of education and library boards, and there does not seem to be a conflict of interest there. Using that analogy, why should there be a conflict of interest in this case?

1898. Mr Stewart: If we were not proceeding with the review of public administration along current lines, the Minister of the day might have wanted to consider the matter anyway. However, that is a hypothetical situation. I can merely reiterate to the Committee that, in common with the Library Authority and other regional authorities, the administrative policy is in line with some of our ministerial colleagues: to avoid conflict of interest, members of the ESA should not be MLAs.

1899. The Deputy Chairperson: We will take Mr McCrea’s point on board and seek legal advice on behalf of the Committee. Are members content?

Members indicated assent.

1900. The Deputy Chairperson: The next member to ask a question is Edwin Poots.

1901. Mr Poots: Four years is the maximum time that someone can hold a position in the ESA. I do not necessarily disagree with that, but there might be a problem if the changeover takes place every four years and the entire board changes. Will the Bill allow for half the members to leave after the four-year term and the other half to stay for a six-year term, in the first instance, and use a rotational system thereafter?

1902. Mr Stewart: That is precisely the sort of practical arrangement that will be required. It is possible for reappointments to be made after the four-year term, although two terms is the normal maximum that the Commissioner for Public Appointments recommends. However, as you rightly said, it would place the organisation at considerable disadvantage if we renewed its entire membership at the same time. We will take all steps necessary to stagger the change, whether that involves extending or shortening appointments.

1903. Mr Poots: It makes sense for members of the ESA not to be Assembly Members, because we will be holding them to account.

1904. Mr Lunn: I am sorry to bang on about membership, but here we go again. Schedule 1 states that most of the board should be district councillors “so far as practicable". Is there room for manoeuvre?

1905. I have said this before, but we started with no democratic representation being proposed for the board. We have not stopped at the halfway point of some democratic representation and have, instead, gone straight to a position where a majority of district councillors will control the board.

1906. It is mooted that the ESA board will be made up of between seven and 12 people. Contrast that with the board of the Library Authority, which has 18 members. With all due respect to the Library Authority, the ESA board will have much more responsibility, and we are constantly being told that its budget and organisation will be huge.

1907. You mentioned merit as the basis for selection, but what about experience, cross-party representation and geographical spread? I cannot see how the board will be put together on a satisfactory basis. Councillors who have the required expertise and experience may have to be moved on four years down the line, and perhaps five more councillors with the requisite experience and expertise will have to be found. It does not sound feasible.

1908. I hesitate to suggest that the board of a public body should be made bigger. However, if the Library Authority needs 18 people, does it make sense that ESA could be run by a board of eight? Indeed, five of those eight people will need another qualification, which has nothing to do with education but is at the whim of the electorate.

1909. Mr Stewart: If you feel that there is too much local democratic accountability now, I am tempted to remind you of the Chinese proverb:

“be careful what you ask for — you might get it."

1910. The wording — that qualifications will be secured “so far as practicable" — does not give us a choice of whether to do that or not. The phrase is there to allow for the — albeit unlikely — event of insufficient numbers of councillors coming forward who wish to be members of the ESA or who prove themselves to be qualified. However, it does not give us what you called “room for manoeuvre" to depart from the principle that is in the Bill.

1911. I recognise members’ concerns that there may not be enough ESA board members. Our view is that up to 12 people is sufficient and strikes the right balance between breadth of competence, experience and manageability. Organisations with larger numbers sometimes struggle to be effective in making decisions, so the numbers that the Bill proposes are a sensible balance and compromise.

1912. The additional qualifications, competence or experience that we are looking for are not an absolute requirement. It is extremely desirable that we have members with experience in education or a related field, but it is not absolutely essential. The core principles are that the ESA will be a body with a budget of some £2 billion and with 50,000 staff delivering an indispensable public service. The quality of membership will be the key to its success; that is why the merit principle will feature strongly in the appointment arrangements.

1913. Mr Lunn: What about the inevitable problem of cross-party representation on the board? Cross-party representation is bound to be demanded, but it does not necessarily tie in with expertise and experience.

1914. Mr Stewart: Cross-party representation may be desirable, but it would be difficult, in fact impossible, for us to guarantee it in legislation. Mr Poots will be familiar with that from his time considering the arrangements for the Library Authority.

1915. We could not, for example, employ d’Hondt to achieve political balance. Ironically, that would be regarded as discriminatory and, therefore, could not be included in legislation that might be brought to the Assembly. Such provisions can be included in Westminster legislation but not in Assembly legislation, by virtue of section 6 of the Northern Ireland Act 1998, which we mentioned last week.

1916. Mr Lunn: You will be pleased to know that the Alliance Party agrees with the DUP about the Assembly disqualification rule, which is absolutely right.

1917. The Deputy Chairperson: What about Trevor’s point that although the Library Authority is a much smaller body, with less onerous responsibilities, it has more board members. The ESA will have huge responsibilities, yet it will have a relatively small board. How do you explain that difference?

1918. Mr Stewart: It is not for me to comment on other Ministers’ decisions or, indeed, on the advice of officials from other Departments. We believe that the proposed number of board members for the education and skills authority is correct. We note Committee members’ opinions on the matter, and we will relay them to the Minister. However, the short answer is that we think that we have got the number right.

1919. The Deputy Chairperson: The ESA will have quite a few subcommittees, which will mean that a small number of people will be dispersed among them, resulting in a heavy workload for those board members.

1920. Mr Stewart: I agree. However, that number can be supplemented, because members of committees will not necessarily have to be full ESA board members.

1921. The Deputy Chairperson: Nevertheless, presumably each committee will include at least one board member.

1922. Mr Stewart: That would be desirable.

1923. The Deputy Chairperson: Therefore, board members could carry quite a workload, in addition to having to attend board meetings.

1924. Mr Stewart: I recognise that possibility, and it is a fair point.

1925. The Deputy Chairperson: Does that not make a case for having more board members?

1926. Mr Stewart: We will take note of that concern. In due course, if it is deemed that ESA membership is too small and that the ESA is not fit for purpose, the Minister will consider changing it. However, at this stage, we are not convinced that more than 12 members are required.

1927. Mr Poots: How many committees do you envisage being established? Assuming that you have a good idea about corporate finance and so forth, will there be three or four? In addition, how many people will be on the committees, and will the existing appointment principles be applied? Will the committees have a majority of public representatives, and will appointments be based on merit?

1928. Mr Stewart: Appointments will be based on merit. We do not have a firm figure for the number of committee members. You mentioned the usual suspects, and we expect to see them on committees. In the past, we spoke about geographically based committees, which will be associated with local teams. There may also be committees that focus on particular themes or areas of service delivery rather than on geographical areas. At this stage, we do not propose to introduce a requirement for most committee members to be local representatives, so that may be a difference.

1929. Mr Poots: With respect to committee powers, I assume that the board will not be able to overturn a committee’s decision easily and that a committee’s recommendations will normally be approved.

1930. Mr Stewart: That will depend on the terms of delegation of functions to committees. However, as a general principle, when a function has been delegated to a committee, the body that delegates that function would not normally be expected to overturn a committee’s decisions.

1931. Mr O’Dowd: I, too, believe that it would be a mistake to have MLAs as members of the ESA board; it would be bad for democracy and bad for education. As the Deputy Chairperson said, the ESA board will be busy and may require more members. How could MLAs sit on the ESA board? They are already fully stretched. The public might say that we are not stretched enough, but we are; therefore it would be a mistake for us to be members of the board of the ESA.

1932. I am not sure where Basil was coming from. I am a member of the Assembly and Executive Review Committee that considers dual mandates and other matters. The Ulster Unionist Party members on that Committee are among the majority who do not believe in dual mandates. They also agree on whether members of the Policing Board should sit on a justice Committee, because there is already a sense of MLAs holding other MLAs to account.

1933. The legal advice was that there may be a conflict of interest — but “may" is a very big word in law. I do not understand where Basil is coming from when he talks about the democratic make-up of the board. One of the general principles of the RPA is to democratise the administration of public services, because many complaints have been made about too many quangos. Perhaps Trevor will forgive me for my next comment: if one was a member of the great and the good or a member of the Alliance Party, one was set for life.

1934. Mr Lunn: Rubbish.

1935. Mr O’Dowd: Why not ensure that appointments are made to the board through a democratic process? I am not sure what Basil’s reasonable compromises are. He attempts to portray himself as “Mr Reasonable" to the world and its media; however, when he presents me with a reasonable amendment, I will consider it reasonably, and the rest of the Committee has a duty to do the same. However, he has presented no such amendments to date. Basil’s opening comments merely confirm that his opposition to the ESA Bill is not educational but political. It is disappointing that he did not set aside his perfectly legitimate political ambitions and concerns for a time and study the RPA from a broader educational perspective.

1936. My question is —

1937. Mr B McCrea: On a point of order, Mr Deputy Chairperson. Will I get a chance to respond to that conversation at some stage?

1938. The Deputy Chairperson: I ask members to direct their questions to the officials; we are not here for a cross-party discussion.

1939. Mr O’Dowd: I was outlining the status of the debate and responding to comments that have been made.

1940. My question to the officials is about their explanatory notes on clause 2 in which youth services are separated from the rest of the services. Is nursery-school provision included in a different definition, and how will the voice of nursery schools be heard in the overall ESA equation?

1941. Mr Stewart: Technically, nursery schools come under primary education.

1942. Mr O’Dowd: Is that how their voice can be heard through the ESA mechanisms?

1943. Mr Stewart: Yes.

1944. Mr O’Dowd: Has giving further weight to the nursery element of the discussion been considered?

1945. Mr Stewart: I am not sure what you mean.

1946. Mr O’Dowd: Some nursery school providers, particularly educationalists, sense that their voice is not being heard. They feel lost in the primary school equation and fear that they will be completely lost in the ESA. Is there any way to reassure them, or are satisfactory provisions in place to ensure that the voice of nursery schools is heard? If so, are those provisions adequately resourced?

1947. Mr Stewart: That is possibly a matter of opinion or policy. We stressed the need for board members, wherever possible, to have relevant experience and knowledge. I relayed to the Minister the view that we must ensure that nursery schools are not overlooked. The same point is frequently made to us by other stakeholders, particularly from youth services and early years, which overlaps with nursery provision.

1948. Your general point is correct, and we acknowledge that concern. We are not merely a Department for schools; education is about more than schooling, although that is an extremely important element. That is why clause 2 covers every dimension of development and all three major spheres of education. It is a valid point that the membership of the ESA should reflect that and should not comprise solely schools’ representatives or representatives from any one part of the school sector.

1949. The Deputy Chairperson: John, when you made your point about nursery education, were you referring to statutory provision or were you including private, and community and voluntary provision too?

1950. Mr O’Dowd: As reflects the different voices that I have heard, I was referring to all nursery schools.

1951. The Deputy Chairperson: Does the Department have the power to include in the Bill clauses that refer to the private, and community and voluntary sectors, or is its power confined to statutory provision?

1952. Mr Stewart: It covers both. The broad term for early years in the Bill is “educational services", and that covers statutory and non-statutory providers.

1953. Mr McCausland: Comparison was made between the education and skills authority and the Northern Ireland Library Authority (NILA) in relation to membership and councillors. Do you not agree that that is not comparing like with like? There is a single library service — we do not have voluntary, controlled, maintained and Irish-medium libraries. The complexity and sensitivities of education suggest that it is not a case of comparing like with like.

1954. Therefore perhaps we need to give more consideration to the composition and size of the board — although I have no set views about how that may be done. Do you at least accept that it is not necessarily a case of comparing like with like?

1955. Mr Stewart: I do; and we do not want to give that impression. Several members have concerns about the proposed number of members of the ESA board; I recognise that, and will relay those concerns to the Minister. The legislation includes a provision that allows us to vary the number of members of the ESA quickly by Order. Therefore, if it transpires that the number is not right and there is a need for a larger membership, that could be addressed fairly quickly.

1956. Mr McCausland: Have you given any thought to the possible number of committees and subcommittees? If you have compared the new body with other public bodies, you must have some idea of its human resources and finance needs. Have you given any thought to what the time commitment may be for people who are members of the ESA board?

1957. Mr Stewart: Rather than giving you a figure about the number of committees off the top of my head — which may be unhelpful — I am conscious that we owe the Committee a paper that we offered some weeks ago, setting out in more detail what we propose for the local structure of the ESA; particularly the role and composition of committees.

1958. If it would be helpful, our thinking to date on the number of committees could be included in that paper. I am not certain how much information we could offer at this stage on what the time commitment may be, but I will take that query back to the Department and give it some thought.

1959. Mr McCausland: Briefly, under the current regime, 40% of an education and library board’s members are drawn from local authorities. I do not know about any other education and library boards, but in the Belfast Education and Library Board — and I declare an interest in that regard — it was done by proportionality.

1960. You said that it would require Westminster legislation to have proportionality in councillor representation to make sure that it is reflective. If it were left to the Department or to the Minister, some people could be sceptical about the reflectiveness and appropriateness of how the process operated.

1961. Mr Stewart: I am not sure whether that was a comment or a question.

1962. Mr McCausland: The first part was a question; the second part was a comment.

1963. Mr Stewart: I am grateful for the clarification. It would require an amendment to Westminster legislation. When colleagues in DCAL examined the composition of the Library Authority and how they could bring about cross-party representation in its membership, they thought that they had the obvious answer: apply a d’Hondt-type mechanism. They merrily proceeded on that basis.

1964. For the sake of completeness, they checked with legal advisers whether that was sound. They were surprised — as we were — to learn that not only was it not sound, but that it would be unlawful. They could not proceed on that basis.

1965. There is no easy or straightforward way for us to include a mechanism in the legislation that would guarantee such an outcome. There are always tensions in any mechanism that attempts to ensure a balance between elements such as political opinion, gender or geography and the merit principle. Those factors are not completely incompatible and the tensions are not insuperable, but we would encounter considerable difficulty in trying to guarantee a particular political representation or outcome in the Bill.

1966. Mr McCausland: I am glad that it is not impossible to reconcile those two factors of having some form of proportionality and ensuring that board members have certain competences and skills, because sometimes people would simply throw their hands up in horror and say that that cannot be done. It may be complex, but it is possible. Does all this architecture not become incredibly complex because of the nature of education and the sensitivity and complexities around it? We should not necessarily dismiss concerns about it.

1967. Mr Stewart: That is exactly right, and we do not seek to dismiss them. The merit principle will need to feature centrally in the appointment arrangements. We will want to seek advice from the Commissioner for Public Appointments on the best practice for striking a balance between, or reflecting appropriately, the merit principle and ensuring that there is an appropriate spread of representation and composition in the body so that it enjoys widespread trust and confidence.

1968. Miss McIlveen: Clause 2(5) and 2(6) provide for the ESA to carry out administrative functions under the direction of the Department of Education or the Department for Employment and Learning. Do you know what the extent of that may be? What direction will come from DEL and will it provide funding to pay for the functions that are carried out? Does that mean that there may also be a representative from DEL on the ESA board?

1969. Mr Stewart: On the latter point, no; there have been no proposals for a DEL representative. If DEL wished to have functions carried out, there would be an associated payment. At present, neither Department has anything specific in mind. It became apparent to us as the Bill was being developed that the scope for which such clauses such can be used is quite narrow.

1970. Earlier, Basil asked what is meant by administrative functions. I have to say candidly that it means less than we thought it meant at the beginning of the process. We had several functions in mind to be covered by those clauses — one of them was the payment of teachers’ salaries and pensions, which is currently with the Department. We thought that we might be able to use that provision to move that function from the Department to the ESA. The advice that we received from lawyers was that we could not do so.

1971. Where a function is specifically reflected in statute, all-purpose clauses such as clause 2(5) and 2(6) cannot be used to move that function from one statutory authority to another. That clause refers to low-level administrative functions and, therefore, is likely to be of much less use to us than we thought it might at the beginning of the process.

1972. Miss McIlveen: One of the purposes of the ESA was to reduce bureaucracy and make efficiency savings. Will you be mindful of the cost of setting up committees and subcommittees? Their members will have to be paid and there will be general expenses associated with them.

1973. Mr Stewart: We will be mindful of that, but we will have to strike a balance between doing that and ensuring that the organisation is fit for purpose, bearing in mind members’ concerns about the number of members on the ESA, the number of committees, the potential workload, its importance and complexity. We do not want to spend money on the administration of the ESA that would be better spent in classrooms or on early-years provision or youth groups.

1974. However, the organisation must be fit for purpose; it must account to the Department and to the Committee for the £2 billion of taxpayers’ money that it will spend each year and for the education service’s standards of achievement. Its committee structure must be equipped to do that.

1975. Miss McIlveen: I am genuinely concerned that we may end up with even more bureaucracy because each time officials come to the Committee, there seem to be more and more people getting involved in the operation of the ESA.

1976. Paragraph 11 of your submission says that the Department is considering an amendment to clause 2, which concerns youth services. Would that amendment deal with transferring those services to local councils?

1977. Mr Stewart: There are no proposals to transfer those services to district councils.

1978. Mr Lunn: John mentioned the disqualification of Assembly members from the ESA board. He said that if MLAs are as busy as they ought to be, there is no way that they would have time to apply themselves to something as rigorous as the ESA board, never mind a conflict of interest arising. Let us hope that, come June 2011, district councillors will have much more responsibility. Although, with the way things are going — the Minister is holding onto her fiefdoms — district councillors may not be as busy as might have been expected. However, they will be fewer in number and busier. Could that cause a problem? Even a busy district councillor could face a conflict of interest, given his duties as a member of the ESA and pressure from his constituents.

1979. Mr Stewart: There is always potential for a conflict of interest when anyone holds more than one public office. The ESA would need to ensure, through its standing orders or instruments of governance, that there are proper arrangements for addressing potential conflicts of interest. There is a significant difference between that and the systematic conflict of interest that could arise if MLAs were members of the ESA. That is where we draw the distinction. Councillors will have a considerable workload — being a councillor and a member of the ESA would be a significant challenge. There is no point in denying that.

1980. Mr McCausland: If an MLA is a member of an education and library board, we can see how stretched they are — even if they are a member of a board whose every meeting they can attend because it is comparatively near Belfast. How could an MLA discharge their duties as a member of such a big body with such huge responsibilities as well as do their work as an MLA? It is not feasible.

1981. Mr B McCrea: As a busy MLA, I sit on the Education Committee and the Policing Board. If I were given the opportunity to become a member of the ESA, I presume that I would not sit on the Policing Board. That is how you find the time.

1982. I will say one thing in response to Mr O’Dowd: we oppose these provisions because they are not about education; they are about politics. That is our position. We have made our position on the way forward in education clear in the Assembly; if he wishes to talk to me about it, he may.

1983. Mrs M Bradley: For several years, I was a member of an education and library board. After being at the Assembly for a year or so, I realised that I could not do justice to the education and library board. For that reason, I felt that I had to resign.

1984. The Deputy Chairperson: Schedule 1(14) deals with finance. The Committee compared the Libraries Act (Northern Ireland) 2008 and the Education Bill. Schedule 1(15)(3) of the Libraries Act (Northern Ireland) 2008 states that:

“the Authority shall pay to the Department all sums received by it in the course of, or in connection with, carrying out of its functions."

1985. The Department in question is DFP. Why is a similar provision not in the Education Bill?

1986. Mr Stewart: Those are commonly known as “appropriations and aid", by which a Department or public authority receives a significant income stream. That schedule of the Libraries Act (Northern Ireland) 2008 reflects the standard arrangement for returning that money to the centre. We did not see a need for that in the Education Bill, simply because the ESA will not receive significant sums of money.

1987. Mr Lunn: Can the Library Authority borrow money?

1988. Mr Stewart: I am not sure, but we have specifically excluded that from the ESA.

1989. The Deputy Chairperson: The Council for the Curriculum, Examinations and Assessment brings in money.

1990. Mr Stewart: It does. Its arrangements will carry forward into the ESA. However, we did not see a need for an arrangement similar to that in the Libraries Act.

1991. The Deputy Chairperson: Why not?

1992. Mr Stewart: I am not sure what DCAL’s thinking was on the Library Authority. However, a similar need simply has not arisen in the Department of Education.

1993. The Deputy Chairperson: Perhaps you should look into the matter.

1994. Mr Stewart: I will. However, I am afraid that I cannot comment on DCAL’s thinking on the matter. I will look at it again with regard to the ESA.

1995. The Deputy Chairperson: Page 186 of the same document relates to schedule 1(7)(5) to the Health and Social Care (Reform) Act 2009, which states that:

“Every member of a committee who, at the time of appointment, was a member of the Regional Board shall, on ceasing to be a member of the Regional Board, also cease to be a member of the committee."

1996. Is that not the case with ESA?

1997. Mr Stewart: I am not entirely familiar with that provision of health legislation. In the Education Bill we have not insisted that every member of a committee must also be a full member of the ESA. That being the case, it would not be logical to have an equivalent provision to require someone to stand down from a committee if that person also stood down from ESA.

1998. Mr O’Dowd: Sub-paragraph (3) states that:

“A person who is not a member of the Regional Board shall not, except with the approval of the Department, be appointed to a committee."

1999. Does that not give the Health Department leeway to alleviate any discrepancy?

2000. The Deputy Chairperson: That allows a person to be appointed.

2001. Mr O’Dowd: Aye. However, if I have picked up your point correctly, my understanding is that if someone leaves the board, he or she must also automatically leave the committee and — I know that we are talking about the Health Department — the Department cannot, in those circumstances, reappoint someone to the committee.

2002. Mr Lunn: I think that it says the same thing in schedule 1(7)(2) to the Education Bill, which is also on page 186.

2003. Mr Stewart: There is a similar requirement for departmental approval of committee members when they are not members of the ESA. That is correct.

2004. The Deputy Chairperson: OK. We will move to the next presentation, which is on the transfer of staff. The matter is dealt with in clause 9 and schedule 2 to the Bill. The lion’s share of the work has fallen on your shoulders, Mr Stewart.

2005. Mr Stewart: It always does. It is well deserved.

2006. The Deputy Chairperson: Your colleagues have an easy time.

2007. Mr Stewart: Thank you, Deputy Chairperson. As you say, clause 9 and schedule 2 deal with the transfer of staff from the employment of boards of governors to the employment of the ESA by means of staff-transfer schemes. That transfer is intended to take place on 1 January 2010, subject, of course, to the will of the Assembly. However, as we have discussed over the past couple of weeks, it would need to be commenced earlier than that; indeed, at Royal Assent. That is to allow the Department to draw up the necessary transfer schemes in time for them to be implemented on 1 January 2010.

2008. Schedule 2 sets out the detailed provisions that will govern the transfer. Those are consistent with similar provisions in other review of public administration legislation and with the guiding principles that have been issued by the Public Service Commission. I want to draw three points to the Committee’s attention.

2009. First, at paragraph 2(4), there is reference to the Transfer of Undertakings (Protection of Employment) Regulations 2006, which are more commonly referred to as TUPE. The effect of the provision is that TUPE regulations will apply, which means that staff will transfer on their existing salaries and terms and conditions of employment.

2010. Schedule 2(6) and 2(8) extend that a little further and deal with pensions; they provide that staff will be afforded pension protection.

2011. Staff rights to acquire pension benefits, when taken as a whole, will be the same as, or no less favourable than, those that they enjoyed before their transfer.

2012. Paragraph 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 deals with continuity of action. That provision ensures that actions that former employers have taken in respect of employment will remain valid and that actions that former employers take at the time of transfer can be carried on by the education and skills authority as if it had initiated those actions in the first place.

2013. The Deputy Chairperson: You said that the Transfer of Undertakings (Protection of Employment) Regulations 2006 will apply. Will that not mean that the education and skills authority will have to deal with a plethora of staff who had different terms and conditions of service with their previous employers? Could that not raise equality and job evaluation issues and cause the education and skills authority a huge headache?

2014. Mr Stewart: It certainly means that there will be groups of staff in the organisation, at least initially, who have significantly different terms and conditions. The regulations will provide some scope for equal opportunities and equal pay claims; there is no doubt of that. The education and skills authority will have to manage that significant challenge. However, I have no doubt that the aim of the organisation will be to harmonise and equalise terms and conditions for all staff over time.

2015. However, that needs to be done in the normal way, through negotiation and engagement with staff and trades union representatives. Bearing in mind the provisions in contracts of employment, the education and skills authority cannot simply ride roughshod over terms and conditions. That harmonisation will have to be negotiated and worked through over time.

2016. The Deputy Chairperson: Has the chief executive designate begun any negotiations with trades unions, teachers or others, in the interim before the Bill is enacted?

2017. Mr Stewart: The chief executive designate has yet to hold any specific negotiations. At present, Gavin Boyd and his team are working on the draft transfer schemes and are engaging closely with trades union colleagues on that. I do not think that Mr Boyd needs to look at particular terms and conditions just yet to examine how they might evolve over time. Mr Boyd and his colleagues are also talking to existing employers about the Transfer of Undertakings (Protection of Employment) Regulations 2006, as they place certain responsibilities on existing employers to engage with staff to ensure that they are properly informed and consulted about the transfer.

2018. The Deputy Chairperson: In the interim between the education and skills authority’s being set up and the harmonisation of a plethora of various conditions of service, is there not the danger of gridlock if individuals decide to pursue cases?

2019. Mr Stewart: It is difficult to comment on possible gridlock without going over all the facts and figures on the degree of variation. However, we are aware of the possibility. I assure you that the education and skills authority implementation team (ESAIT) is aware of it and takes it very seriously. At present, I do not think that it is possible to predict exactly what will happen.

2020. The Deputy Chairperson: Is there a plan to bring about harmonisation?

2021. Mr Stewart: No; not at present.

2022. Mr Lunn: Is there anything in the regulations about the transfer of staff that is unique to this situation or are they fairly standard?

2023. Mr Stewart: To the best of knowledge, the regulations are standard and consistent across the RPA.

2024. Mr Lunn: That is how it looks. It is complicated, but well rehearsed.

2025. Mr Stewart: There are the usual complications.

2026. The Deputy Chairperson: Given the headache that could arise from the harmonisation of terms and conditions of service, would it not be sensible for the education and skills authority and the chief executive designate to attempt to scope any potential problems and to formulate a plan of harmonisation now rather than wait until the authority has been set up?

2027. Mr Stewart: That is a sensible suggestion. I expect a degree of consistency on the extent of that variation among the five education and library boards. I am hopeful that there will not be a major difference among the boards and the CCMS. There is, perhaps, greater scope for variation in schools, particularly those that are currently employers. There is consistency in employers’ terms and conditions, but not always in the application of those terms and conditions. Nevertheless, your suggestion is valid, and we recognise the risk. Like all risks, it should be managed and scoped early.

2028. The Deputy Chairperson: There is, presumably, some equivalence between the maintained and controlled sectors at the moment; however, the difficulties arise with voluntary grammar schools. Such problems have already arisen with classroom assistants, whose terms and conditions are still under consideration and whose jobs are still being evaluated even though that process is almost complete for board staff.

2029. Mr O’Dowd: The job evaluation process has been under way for many years and has brought many workforces’ terms and conditions into line. The advantage of a single employing body is that any future job evaluation will encapsulate all staff. Is that the type of process that Gavin Boyd, or whoever, must adhere to in future?

2030. Mr Stewart: He will have to do so where there is a need for job evaluation. The process to which Mr O’Dowd refers has been under way for many years, and the Public Accounts Committee has sharply criticised the Department’s stewardship of the matter. A clear message and key recommendation that arose was that the Department did not ensure sufficient consistency and commonality of process and practice across the education and library boards and the various organisations. We have learnt that lesson, and, as Mr O’Dowd rightly says, it is a key plank of the rationale for establishing a single employing authority for education. In future, it will protect the interests of staff and of the taxpayer, and the recent job evaluation difficulties should not arise again.

2031. The Deputy Chairperson: After the classroom assistants’ dispute, the Minister announced that she will initiate an education workforce review, as the matter is related to terms and conditions of service. Has there been any correlation between the Department’s review and the ESA’s work to ensure harmonisation of terms and conditions?

2032. Mr Stewart: I cannot comment on that matter, because I am not closely involved in the workforce review. If it is helpful, I will investigate the matter when I return to the Department.

2033. The Deputy Chairperson: It would be useful to ensure that there is dialogue on that front. We will move to the presentation on clause 22 and schedules 3, 4 and 5, which relate to the transfer of assets.

2034. Mr Stewart: Clause 22 outlines the scope of the three schedules. Schedule 3 deals with the transfer of the assets, liabilities and staff of the various dissolved bodies to the ESA on the appointed day; schedule 4 addresses the transfer of certain assets and liabilities from the Council for Catholic Maintained Schools before the appointed day; and schedule 5 outlines arrangements for the transfer of certain staff from the Department to the ESA on the appointed day.

2035. We intend that the provisions will commence on Royal Assent so that the Department can draw up the necessary transfer schemes before the appointed day. However, with the exception of schedule 4, the schemes will not come into operation and the transfers will not take place until the appointed day. The slightly different approach in schedule 4 stems from the fact that some CCMS assets ought to be transferred to the Church rather than to the ESA, because they were funded by the Church in the past.

2036. The schedule would allow for those assets, and any associated liabilities, to be identified and transferred to the Church before the appointed day. Thereafter, all other assets and liabilities of the CCMS would transfer to the ESA on the appointed day by means of a scheme under schedule 3 rather than schedule 4.

2037. Schedule 3 is similar in construction and effect to schedule 2, but there are a couple of points to emphasise. Paragraphs 1 and 2 contain exclusions for assets and liabilities that relate to libraries’ matters, which would transfer to the Library Authority rather than to the ESA. Likewise, where the continuity of action provisions relate to libraries’ matters, they point to the Library Authority rather than to the ESA.

2038. Schedule 4 is similar, but, again, the continuity of action provisions relate to the Church rather than to ESA. Schedule 5 is similar in construction and effect.

2039. The Committee will be aware of the Executive’s decision that Civil Service staff who transfer to the ESA and other RPA organisations will be offered a choice between permanent transfer and secondment. That does not require a change in legislation. Permanent transfers will be dealt with under the provisions in schedule 5, while secondments will be dealt with by provisions in schedule 1(5)(6) and 1(5)(7).

2040. The Deputy Chairperson: Will school buildings be included among the assets that are returned to the Church? Would all assets be covered by legal agreements that could be easily identified?

2041. Mr Stewart: The assets are office premises rather than schools; schools are already in the ownership of the Church and will remain there. They are office premises that are formally in the ownership of the CCMS but which have been gifted to the CCMS by the Church or funded by the Church in the past.

2042. Where the Department has invested in improvements to premises that were funded or gifted by the Church, arrangements may have to be put in place so that the Department can clawback its share of the money. It is in recognition that although the CCMS is a public authority not all its assets are publicly funded. Natural justice suggests that they should be returned to the Church, whence they came. All publicly funded assets will transfer to the ESA on the appointed day.

2043. The Deputy Chairperson: What arrangement will the Department have to clawback its investment in premises?

2044. Mr Stewart: It will depend on the agreement that was put in place, but, essentially, we will get back what we put in.

2045. The Deputy Chairperson: Is that in the existing agreements?

2046. Mr Stewart: Where there are existing agreements in place, yes. I would need to study the detail.

2047. The Deputy Chairperson: What happens where there are no existing agreements?

2048. Mr Stewart: There may or may not be existing agreements, but there will be in every case clear detail of the ownership and level of investment that the Department has made in an asset; we will ensure that we get out what we put in. The legislation is drafted to allow for that. It is for the Department to make the necessary transfer schemes in either case. The Department will need to be satisfied of the need to transfer an asset to the Church. The default is that anything that is not transferred to the Church transfers to the ESA.

2049. The Deputy Chairperson: You say that there will be records of investment made by the Department in those premises, and to use your words:

“We will get back what we put in."

2050. Is there a formula for that?

2051. Mr Stewart: I would need to check on the detail and come back to the Committee.

2052. Mr O’Dowd: Will the process be governed under the Department of Finance and Personnel guidelines and procedures? There is already a set statutory process to which all Departments must adhere.

2053. Mr Stewart: It will; and DFP will look very closely at what we do to ensure that we adhere to that guidance.

2054. The Deputy Chairperson: Would there not be a massive legal task in the conveyancing of properties back to the Catholic Church or of assets back to the Department? Will that not create the kind of huge administrative burden that the ESA is being set up to avoid?

2055. Mr Stewart: There will be a significant administrative task in transferring all the assets, including those of the education and library boards. Those assets must be identified, listed and catalogued, and all the necessary legal documentation transferred and amended in order to make the change.

2056. The transfer back to the Church of a relatively small number of properties will not be a major element of that huge challenge. The Deputy Chairperson is right that the task is big, but it is unavoidable. The asset base in the controlled sector alone is worth some £2·3 billion. The Department must ensure that the transfer is legally sound and watertight.

2057. The Deputy Chairperson: Finally, do the transfer-scheme provisions in schedule 5 take into account procedures that are required to address the rights of Civil Service staff?

2058. Mr Stewart: I am not sure that I understand the question.

2059. The Deputy Chairperson: Presumably some of the staff moved from the Department will be Northern Ireland Civil Service members. Will their rights be protected in schedule 5?

2060. Mr Stewart: Yes; there will be consistency. Anyone transferring to the ESA permanently will no longer be a civil servant; they will lose their Civil Service status. Nevertheless, the protection will be similar to that afforded to staff transferring from other organisations. TUPE — and the level of pension protection — will apply.

2061. The Deputy Chairperson: In the absence of any other questions, I thank the witnesses and have no doubt that we will meet again before very long.

11 March 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mrs Mary Bradley
Mr Tom Elliott
Mr Trevor Lunn
Mr Nelson McCausland
Mr Basil McCrea
Miss Michelle McIlveen
Mr John O’Dowd
Michelle O’Neill

Witnesses:

Dr Evelyn Dermott
Mr Brett Lockhart
Mr Finbar McCallion

 

Governing Bodies Association

Mr Shane McBrien
Mr Stephen McConnell
Mr John Robinson

 

Northern Ireland Voluntary Grammar Schools’ Bursars Association

Mr John McGrath
Mr Chris Stewart
Ms Eve Stewart

 

Department of Education

2062. The Chairperson (Mr Storey): You are very welcome. However, I am afraid that I must vacate the Chair and hand over to Mr McCausland.

(The Acting Chairperson
[Mr McCausland] in the Chair)

2063. The Acting Chairperson (Mr McCausland): I welcome the representatives of the Governing Bodies Association. I remind members that four additional stakeholder responses have been added to the papers for today’s evidence session. There is also a spreadsheet, which groups stakeholders’ comments by clause or schedule. It is an interim version, but it comprises the most substantial responses that have been received to date. Members will be provided with an updated version as soon as possible.

2064. I will now hand over to Dr Evelyn Dermott, Mr Brett Lockhart and Mr Finbar McCallion. You will have 10 minutes to make your presentation and then we will move into questions.

2065. Dr Evelyn Dermott (Governing Bodies Association): Thank you for your invitation to present the Governing Bodies Association’s (GBA) position on the Education Bill to the Committee. As members know, we have expressed grave concerns about several aspects of the proposed legislation in meetings with departmental officials and in correspondence with the Minister. We are pleased to have this opportunity to present our concerns to the Committee.

2066. I trust that members have been provided with copies of our written submission and the correspondence between the GBA and the Minister. As time is limited, I will not go through the whole submission paragraph by paragraph; however, I will group the paragraphs and tell you which ones I am speaking to. I hope that that is acceptable.

2067. I will begin with paragraphs 1 to 4. The main purpose of the Education Bill is to set up the Education and Skills Authority (ESA). That body will become the largest education authority in western Europe. It will be an all-powerful controller of every aspect of schools provision in Northern Ireland, and so, it cannot but become a huge and enormously expensive bureaucracy. The original aims of education reform, which we supported, were to reduce bureaucracy, release additional funds for services and develop targeted support for schools. We still want to support those aims. However, the proposals for the ESA indicate that it will be an enormous and costly bureaucratic controlling body, which will have ultimate responsibility for all significant decisions on the running of schools.

2068. The GBA is concerned that the ESA, as outlined in the Bill, will, inevitably, become an ever-growing bureaucracy, with no restriction on the proportion of the education budget that it can accrue unto itself. Among other things, it will be the employer of all staff and the sole procurement authority. It will have powers to appoint, remove and replace governors. It will standardise the schemes of management of our schools, and it will determine the precise role of every school through area planning. In contrast to that all-empowering body, the GBA would like to see an ESA that would enable, facilitate and support — not control.

2069. Paragraphs 5 to 10 make it clear that the ESA will be the employer of every person involved in education. Staff will be employed in our schools, not by our schools. All attendant responsibilities will, therefore, rest with this remote juggernaut organisation.

2070. We have expressed grave concerns regarding that aspect to the Minister. In her reply, the Minister has given us assurances for which the Bill provides no statutory basis, and that was the bottom line of our concern. She said that some schools may wish to be responsible for all employment matters; but there are no clauses in the Bill to match that statement. We submit, therefore, that clause 3(1) be amended as suggested in paragraphs 8 and 10 of our submission. Our proposed amendment would mean that the schools that did not wish to assume responsibility for employment would have those responsibilities assumed by the ESA. However, a board of governors that chose to do so could continue to act as employer subject to the normal strictures of employment law.

2071. Paragraphs 11 to 13 deal with the principle of autonomy and protection of the ethos of our schools, which, as you know, we hold dear. The GBA maintains that the principle of autonomy and protecting the ethos of schools should be enshrined in law. Ethos-protection provisions are included in the Education (Northern Ireland) Order 1998, and there is no reason, in principle, why ethos protection could not be included in the Bill.

2072. The GBA wishes to have those principles as rights within law. We cannot be satisfied with non-binding intentions, such as those expressed in the Minister’s correspondence. The GBA submits that if the Minister and the Department are genuinely committed to preserving ethos and maximising autonomy in school governance, the present legislative model will require an amendment. It could be done.

2073. Paragraphs 14 to 22 refer to school governance and management, which also come into the Bill. They are areas of great concern. As the Bill is drafted, the powers of the ESA will not only allow regulation of membership of boards of governors, it will allow total control over their procedures to control school schemes of management. We consider that that is excessively bureaucratic and will give power to intervene in all aspects of school management to an unprecedented degree. Again, the Minister’s written sentiments are contrary to the Bill. I refer members to paragraphs 17 and 18 of our submission. Regardless of whether it is the desire of the Minister, the Bill allows intervention in school management to an unacceptable level.

2074. Paragraphs 20 and 21 also deal with governance. The ESA will have powers to intervene if it decides that a school is underperforming. We submit that the need for the centralised intervention in school governance must be predicated on the objectively verifiable and continuing need for that intervention.

2075. I remind the Committee and everyone who is interested in education that good schools and school improvement come about by good leadership and inspired teaching, not by an overwhelming bureaucracy.

2076. The ESA, therefore, should not be given the powers of an inspectorate. Our submission suggests that relevant clauses be aligned with the Schools Standards and Framework Act 1998 so that such powers reside with the Department of Education, not with the ESA. That would be much more appropriate.

2077. The GBA has seen no compelling argument as to why governance-oversight arrangements that apply in England and Wales cannot also be appropriate in Northern Ireland. We invite the Committee to reflect on the comparative bureaucratic and resource costs involved in the GB scheme as opposed to those that will arise from those that are proposed in the Education Bill.

2078. The Acting Chairperson: Has the GBA met with Department of Education officials? The Minister’s letter of 24 February 2009 made that suggestion.

2079. Dr Dermott: We declined that invitation.

2080. The Acting Chairperson: Was there a reason for that?

2081. Dr Dermott: The reason was to do with time.

2082. Mr Finbar McCallion (Governing Bodies Association): There was also an issue in that the Minister was implying that we did not understand the Bill, and that her officials would explain it to us. We had already had discussions with the officials, who explained the Bill to us and told us that the ESA would be the employer of all teachers. It seemed strange to go back and be told the same thing again.

2083. The Acting Chairperson: On the basis of clause 8(2), the Department of Education states:

“The ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters."

2084. If model employment schemes and the associated guidance were to set that out clearly — along with other points that you consider need to be clarified — and if those were subject to full consultation with submitting authorities, possibly with an independent appeals system and/or subject to Assembly regulation and control of ESA guidance and model schemes, would some of your key concerns be removed?

2085. Mr Brett Lockhart (Governing Bodies Association): There is no doubt that the legislation expresses a desire to retain the principle of accountable autonomy and that the structures and the architecture of the legislation are such that the ESA will try to give effect to the decisions that are made. The concern is that issues of conflict will cause a problem. When such issues arise, a school takes its own decision. It must comply with the law, and if it does not, it must face the consequences. Schools protect and guard their own ethos, and they, ultimately, make the decisions.

2086. If there were a tribunal, there would be a question about who the respondent would be: the answer is that it would be the ESA, because it would be the employer. A school may have all the schemes that it wants, and the ESA may say that it will give effect to the school’s desires, but the retention of discretion remains with the ESA. If there were a major issue in a school and a teacher were sacked, the ESA would defend that decision. The ESA, for all its desire to maintain ethos, will be a huge bureaucratic organisation that will not, with the best will in the world, do that in the way that schools are able to do.

2087. For example, in the 1930s, the Protestant Churches decided that they could entrust the control of their schools to the state. All sorts of promises were offered, and the Churches accepted them. For years, Protestant ministers had ex officio positions in controlled schools. Recently, the Transferor Representatives’ Council, which is the representative body for the Churches in those schools, was informed that they can no longer have ex officio positions because that would be in breach of equality legislation. The ex officio positions were removed from Stranmillis University College because it was decided that that was in breach of equality legislation.

2088. A plethora of instances and opportunities exist for debate and disagreement on what is stated in the Human Rights Act 1998 or in equality legislation, and on the obligations for schools. The ESA will be the body that has to defend that. With the best will in the world, that will not happen. Realistically, schools must defend their position. They have done so successfully for generations, but someone has now decided that he or she has a much better idea. The opportunities for dispute are legion, and the idea that the ESA will somehow be able to take on board each and every ethos and represent them in other jurisdictions and forums is fanciful.

2089. Mr Lunn: You said that the ESA will become a monolithic structure, and that it will be costly, overly bureaucratic, and totally controlling. Setting aside the element of control, on what do you base your assertion that it will be costly?

2090. Dr Dermott: It is perfectly simple: the amount of work that it will have to do will mean that it will have to employ a legion of people.

2091. Mr Lunn: Is that similar to the present situation with the boards? The ESA is intended to save money: how did you assess that it would cost more?

2092. Mr McCallion: One problem with the ESA is that the Bill places no financial control on it. In paragraph 6.14 of his report, Professor Bain highlighted that school boards of governors in Northern Ireland receive 62% of the education budget to manage their schools, whereas schools in England typically receive more than 80%. Is that because the English are more generous? No; it is because the law in England states that local education authorities (LEAs) must drive up the percentage of money that goes directly to schools. The Education Bill does not contain such a provision and, therefore, the ESA, by its nature, must acquire the money slowly.

2093. We are also concerned about the situation of primary schools in Northern Ireland. The amounts of money received per pupil in Northern Ireland and Wales are similar, yet the amount that goes to each primary school here is £500 less than in Wales. It is not that the Welsh are less generous, but that the bureaucracy in Wales squeezed the money out into the schools. The problem for voluntary grammar schools is that when we dealt with the Department in the past, we managed to get about 90% of our budget, because the Department did not hoard the money. The difficulty with the boards is that they tended to expand their facilities and services.

2094. Almost 10% of Northern Ireland’s Budget is earmarked for particular issues, which is a much higher figure than Congress in America is complaining about. Northern Ireland has an enormous number of issues for which funding has been earmarked, and the problem is that those issues are difficult to control. At present, local people can complain to the boards, but the ESA will be a much more centralised and centralising organisation. People who live in Armagh can get in touch with the chief officer of the Southern Board, as some members have probably done. You also know where to find Barry Mulholland of the Western Board. However, what will happen when there is one central board, regardless of where the ESA may be located?

2095. People are able to reach the boards because their councillors talk to them monthly or even weekly. I sat on the Belfast Board, and I know the amount of pushing and shoving that goes on between boards and councillors. However, even with that, the boards took too much money. RPA was intended to address that problem.

2096. The problem for us is that we are going into a scheme, under RPA, which is intended to save money. However, there is nothing in the Bill stating how the money will be saved or specifying the percentage of money that should be used by the ESA. I do not mind whether it is 5% or 10 %, but a percentage must be fixed. As the Bill does not fix a percentage, it is likely that when we return in two or three years’ time we may discover that the ESA is spending 30% of the money, and we will be told that that is a success.

2097. Mr Lunn: Perhaps we can take up that point: you certainly made it forcefully. However, it is only your opinion that the ESA will be monolithic, huge and expensive: you have no calculations to prove that. You have an impression that that will be the case as, in fairness, do many others. However the ESA has calculated that it will make savings; not more expense.

2098. Mr McCallion: I think that their savings are based on the expenditure of the boards. One needs to compare those savings with what is happening elsewhere in, for example, GB. In the Republic of Ireland, the Committee on Education and Science takes a lower percentage of the budget than bureaucracy in Northern Ireland.

2099. We have been frightened. There are currently five chief officers of the boards plus the head of the CCMS. Initial plans for the ESA proposed that there should be eight such people, as well as a chief officer of the ESA, which makes nine, plus one for the Library Authority. Therefore, six people would be replaced by nine, or 10, depending on what way it worked out.

2100. Perhaps that was a mistake, and perhaps it has been changed. However, there is vigilance. Our fear is that the Bill does not provide for that. If six chief officers did the job previously, then having nine — which seems a lot — or even eight, seven or six seems like too many if one is trying to save money.

2101. Mr Lunn: You have already mentioned your concerns about employment rules and the fact that the ESA will be the ultimate employer. The Department’s response to your submission contradicts everything you say. Nelson has already mentioned the key point that:

“The ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters."

It also states:

“However, the proposed arrangements do not involve any real or practical loss of autonomy, as boards of governors will remain responsible for the exercise of employment functions within their schools, and will take employment decisions the ESA will be under a legal duty to put into effect."

2102. I know that your response will be that it does not say that in the Bill.

2103. Mr Lockhart: Of course, it does not.

2104. Mr Lunn: The Department’s view is that that is already provided for in the education Orders that the Bill supplements. There is a clear difference of opinion.

2105. Mr Lockhart: The fact is that the Bill has been looked at by all sorts of lawyers. I have not found any of them who take a different view to mine; that the ESA will be the ultimate employer and that it will be charged with legal responsibility.

2106. Let us try to be more practical about the matter: is it possible that there will disagreement about what is lawful? Is it possible that the ESA will have a dispute with a Catholic school about upholding its ethos and about whether it is lawful that a teacher must subscribe to that ethos? Will there be an adoption-agency issue writ large in the school system, in which the Government simply direct that schools must comply with the law and have no obligation to maintain rights of conscience?

2107. Undoubtedly, there will be issues in which there is conflict of rights between the right to religious expression, the right to education, and the requirement to enforce the law. That is how lawyers make their money. Essentially, that is what they must interpret. The fact is that there is a wealth of issues on which there will be conflict. The ESA might say that it can take certain actions because the law is clear; however, someone else might say that the Human Rights Act 1998 is clear and that, therefore, the ESA cannot take that action. That is where conflict will arise.

2108. Mr Lunn: That could be the case if the ESA had never been —

2109. Mr Lockhart: The problem is who will preserve the ethos of schools. That is the point. The ESA will be a large, monolithic, bureaucratic organisation that has no particular remit to understand or stand for the ethos of schools.

2110. Mr Lunn: Boards of governors will retain the ethos of their schools.

2111. Mr Lockhart: Board of governors will not have that power when it comes to an issue that is before a tribunal, or when making a decision. The ESA must implement subject to its interpretation of the law. That is the problem: it will be the ESA’s interpretation of the law. There is room for debate and disagreement. Boards of governors can say that they are sorry, that there is a grey area, and that they take a particular view because it is more consistent with their ethos.

2112. Mr Lunn: That is what the law is about.

2113. Mr Lockhart: Exactly: that is why we want it in the Bill. The ultimate decision should be that of boards of governors. If they are wrong, they will take the hit: however, they will stand for their ethos.

2114. The Acting Chairperson: We have covered that issue as far as possible. Basil and John have both indicated that they want to ask questions. Before we move on too far, I want ask my second question again. Although I got a response, I would like a clear yes or no answer. On the basis of clause 8(2), the Department of Education states that:

“The ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters."

2115. If model employment schemes and the associated guidance, set that out clearly, and you get clarification of some of the other points, and if that were subject to full consultation with the submitting authorities — and possibly an independent appeals system — and/or subject to regulation and control by the Assembly of ESA guidance and model schemes, would those caveats remove some of your key concerns in that area?

2116. Mr Lockhart: It would remove some of them, but not all of them. It would also establish an excessively bureaucratic structure. It would introduce a level of bureaucracy into the decision-making process, and that would make the process very difficult for the ESA and schools. I understand the desires and concerns involved. In most instances, there will not be a problem. However, I am concerned about the unintended and unexpected consequences that will inevitably arise.

2117. Yes, there are various procedures in place that could ameliorate and mitigate that particular problem. However, a huge amount of bureaucracy would be involved, and, ultimately, it is still the ESA’s view that must prevail because it is, legally, the employer. Boards of governors could potentially challenge the ESA on the decisions it makes, or on its refusal to implement a decision that the board of governors wanted to make because it says that it is not in accordance with the law.

2118. The Acting Chairperson: Do you at least accept that there are mechanisms that would address some of those concerns?

2119. Mr Lockhart: Why are we introducing those levels of structures into what should really be a reasonably straightforward system, which works well at the moment? The proposal would introduce a Byzantine complexity into the system, and that is completely unnecessary.

2120. The Acting Chairperson: I just wanted to get some clarity on mechanisms that would address those concerns.

2121. Mr McCallion: I would like to comment on the matter from an educational viewpoint. All over western Europe, the argument has been that we need to improve education. A major way to do that is to delegate power to the boards of governors. However, what we are seeing here is drawing power away from boards of governors. The power is going in the wrong direction. Sometimes, it is not the change that matters, but the direction of change. This Bill is sending out a signal that the really important decisions should not be made by boards of governors, parents, pupils and schools; rather they should be made centrally and involve bureaucracy. That is the risk that is being run.

2122. Mr B McCrea: It is a pleasure to see such an eminent QC cross-examine the Committee. [Laughter.] You might help us, since we have the experience here. Prior to this meeting, I expressed concern about the sugar-coated words, assurances and interpretations being offered as regards the Bill.

2123. Mr Elliott: You are not suggesting that it is bluff, are you?

2124. Mr B McCrea: I could not possibly use those words. I am interested in how important it is that the necessary provisions are written into the primary legislation, and how much can we rely upon guidance, interpretation, notes and such like. If something is in the Bill, is that important; and if it is not in the Bill, is that important?

2125. Mr Lockhart: As a lawyer, my first instinct is to look to the primary legislation; the statute. I would be looking to see who has legal responsibility. I have mentioned the TRC as an example, but I am afraid that what I term goodwill assurances — perhaps, more pejoratively, blandishments — promises, even codes of practice and guidelines may all be very interesting in a judicial review, because they may be a relevant consideration when it comes to making a decision. However, what gives comfort to the people involved is being able to refer to the primary legislation. For example, I see clause 3, which means every member of staff, and I can see that it affects not just teachers, but cleaners and ancillary staff — basically, anyone who is employed by schools.

2126. I am from Methodist College, and there is also the Methodist College Preparatory School. As I understand it, there is a move now to do away entirely with any subvention to the preparatory schools, yet the ESA will be the employer. The message seems to be:

“Folks, you are going to have to raise all the money and be responsible for it, but we will be the employer of all your staff and we will make the ultimate decisions".

2127. Those are genuine concerns. If the matter is not written into primary legislation, it will be of less legal benefit. The fact that boards of governors can, ultimately, make decisions provides protection.

2128. Mr B McCrea: I want to tease that matter out, because there has been discussion about clause 3(1) and 3(2)(b), which refers to persons employed by the ESA. If the ESA holds the contract of employment, can a school’s board of governors make appointments and dismissals?

2129. Mr Lockhart: I am sure that their views will be considered in almost every case. However, at the moment, an inversion is taking place. I do not think that boards of governors will attend tribunals to deal with cases, because a barrister from the ESA, which is the employer, will deal with the matter. That is important, because the school’s reputation is on the line. A tribunal is a public forum, and the ESA, as the employer, will represent the school at it. The school will be under no legal obligation to attend, except in an assisting capacity.

2130. Basil asked about staff appointments. As the employer, the ESA might give effect to the decisions that schools make. As I understand it, when a school makes an appointment a representative from the Department of Education attends. That system works well; why invert it? Although the ESA will give effect to lawful employment decisions, the school, in effect, shoulders the legal responsibility. The proposals do not comfort schools sufficiently. Why do we need to change the process?

2131. Ten or 15 years ago, many schools — mostly in the controlled sector — had problems managing employment issues; they needed the positive support that the ESA will provide. However, many schools across the spectrum, such as voluntary Catholic schools and voluntary grammar schools, have managed such matters well for many years. Those schools regard that as the key to protecting and maintaining their ethos.

2132. Mr B McCrea: I have concerns about many issues in the Bill. Is the employment of staff a central tenet of the argument or a peripheral issue? Will it be fine 95% of the time?

2133. Mr McCallion: It is absolutely central. It is an essential part of the proposal and is typical of education in the rest of these islands. In Britain, when a school is under pressure and decides to reform and to become a city academy, what do the Government do? They take the school out of the control of the local education authority and appoint a board of governors that is responsible for the school. Such a process transforms schools.

2134. We could debate the merits of the city academy model; however, it significantly transforms schools in Britain. The key is to give power to boards of governors — it is up to them whether they want to cede it. However, that arrangement ensures that boards of governors, principals and teachers know that they work for a school. The alternative is the Soviet Union model: school 197. What is the difference between school 197 and school 198? It is not the management, because that is controlled centrally. We are moving towards a centralised model.

2135. We are unique; we are the only people in western Europe to go that way. We are waving people goodbye on the train as they all go the other way. It is quite odd.

2136. Mr B McCrea: I wonder, Finbar, whether I could have that quote. School 197? Is that on the Limestone Road?

2137. Mr O’Dowd: Thank you for your presentation. I too am aware of Brett’s legal capabilities, so I will not cross him. [Laughter.]

2138. Mr Lockhart: I have respect for you, too, John.

2139. Mr O’Dowd: He was on our side last time, I am glad to say. What is your definition of accountable autonomy?

2140. Mr Lockhart: Is it an oxymoron? It is an interesting phrase that conjures up all sorts of ideas. Accountable autonomy is provided for in existing legislation. Boards of governors cannot act outside the law; that tension already exists in the system. The Bill will simply invert that and take away the existing powers of boards of governors. They will still have some powers, but, essentially, the Bill changes things round. The emphasis will be on the ESA rather than on boards of governors.

2141. At present, the boards hold things in tension, and both sides must consult with each other. However, the situation will be inverted so that the ESA has the whip hand — the primary legal responsibility. I am concerned about all the promises that have been made, John. On 95% of occasions, things will be fine; there will not be a problem, because people will learn how to get along. Problems will arise when conflicts come along.

2142. Mr O’Dowd: I am concerned that you mean independence.

2143. Mr Lockhart: No; that is not the case.

2144. Mr O’Dowd: I am concerned that a group of schools seeks public funds but does not want public accountability. In the past financial year, voluntary grammar schools received £209,430,734 in public funds for revenue; for capital, they received £30,744,507. That is all public money. To whom should those schools be accountable? The ESA is the body to which all schools that receive public funds should be accountable, but there should be a working relationship with the schools. I agree with you: the boards of governors are responsible for raising standards in schools. However, like any other recipient of public money, they must have mechanisms that can plot their accountability through the ESA and the Department — and this Committee. We will have a role.

2145. Mr Lockhart: There are two points: first, the record of virtually all voluntary schools in managing budgets and ensuring value for money is extremely good; secondly, as I said, accountable autonomy already exists. The voluntary schools are already constrained by regulations and requirements on how they use that money. The proposed change will put the emphasis on the centralised body as opposed to the boards of governors. If that comes about, it will cause problems.

2146. I do not subscribe to the view that, as recipients of large amounts of public money, boards of governors of voluntary schools should not be accountable for the money that they receive. They are already accountable. To centralise accountability is fine; but the powers of boards of governors should not be taken away. I tell you now that as the decades pass, the nature of those schools will be changed as a result. That concerns me, because those schools have been successful — leaving aside the issue of the transfer test for the moment.

2147. Mr McCallion: I will give members an example. Let us suppose that an Irish-medium school that believes in immersion in Irish appoints a member of staff under ESA regulations. What would happen if that teacher said that they did not believe in the immersion teaching of Irish and that children had the right to be taught in English? As the employer, the ESA could not argue that case in court, because the teacher’s lawyers would say that all other teachers in Northern Ireland must teach through English. That would create a tension. I do not know how such a case would be resolved, since the teacher who took the job would have known what was required. Our concerns could easily be portrayed as the grammar schools looking after themselves; however, it could affect all schools.

2148. I have sat on boards of governors of controlled schools, and we have fumed and shouted and given off about the board officers arriving and telling us what to do. Our argument was that we had a school of 1,000 pupils so we knew what we were going to do. This mammy-knows-best, or granny-knows-best or we will put you under our thumb and you will do what we tell you approach is not on. It is very difficult to encourage school governors to raise the standards in their schools with such an attitude being taken. Set them free.

2149. Mr O’Dowd: Fortunately, not even Mr Lockhart could defend that case. [Laughter.]

2150. Mr McCallion: Do not be so sure. [Laughter.]

2151. Mr O’Dowd: Are there any legal barriers to the representation of schools at tribunals?

2152. Mr Lockhart: Why would schools be represented?

2153. Mr O’Dowd: Therefore there is no legal barrier to schools’ representation?

2154. Mr Lockhart: There is nothing in the legislation that says that they cannot be represented. What rights of locus standi have schools? What rights do they have to appear? Who is the employer? It is the ESA: what would a school be doing there?

2155. Mr O’Dowd: Nevertheless, there is no legal barrier to their appearing.

2156. Mr Lockhart: A school could attend the tribunal as a friend.

2157. Mr O’Dowd: Come on now, Brett.

2158. Mr B McCrea: That would create work and money for barristers. Do not complain.

2159. Mr McCallion: Let me draw that out. I have sat in tribunals at which the CCMS held a different view from the board of governors of a Catholic maintained school. Such tension is pretty fierce, and it does not disappear when the tribunal is over; the school remembers what happened. Boards of governors are made up of willing volunteers; we have thousands of them in Northern Ireland. Could we not trust them and give them a bit of space?

2160. Miss McIlveen: Thank you for your presentation. I am concerned but not surprised that there is little discussion between you and the Department on those issues. I hope that that applies only to those issues and that other topics are fully discussed.

2161. Dr Dermott: We have had discussions with the Department. As Mr McCallion explained earlier, we felt that if we took up the most recent invitation, we would merely be repeating discussions that we had already had.

2162. Is that what concerns you?

2163. Miss McIlveen: Yes. I am concerned that things had got to the stage where —

2164. Dr Dermott: We had already ploughed and harrowed that ground.

2165. Miss McIlveen: We are now at a stage where you submit a paper and we receive a paper from the Department asking us to get clarification on issues that you have raised. Most of what interests me has already been dealt with, so I am not going to revisit it.

2166. I wish to address the issues of ethos and employment in the Department’s submission. It seems that the Department is unclear about which provisions of anti-discrimination or fair employment legislation you suggest ought not to apply in schools.

2167. Mr Lockhart: All such legislation will apply to schools. In the Republic, schools are protected by section 37(1) of the Employment Equality Act 1998:

“A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services … which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part … — if

(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee … where it is reasonable to do so in order to maintain the religious ethos of the institution …"

2168. That is written into employment law in the Republic to allow schools to protect their ethos.

2169. The UK legislation is much more fluid, and it is extremely difficult to balance the various rights. Two years ago, for instance, a major dispute arose between the Catholic Church and the Government over the issue of adoption agencies, as the Church and other agencies wanted an exemption. The Church said that it would refer gay couples to another agency but that in conscience it could not entrust children to them. The Government refused to allow that, saying that it was not acceptable. There was an issue about whether, on a fact-specific basis, Church adoption agencies could write appropriate stipulations into their constitutions. It is all in a state of flux. The result has been that quite a few Catholic adoption agencies that dealt with the most disadvantaged children in England have had to close.

2170. Northern Ireland has civil partnership legislation. A Catholic school — and perhaps other schools — might say that civil partnership causes a problem and that its aims, values and ethos make it impossible for it to have a teacher who is in such a partnership.

2171. I am simply giving civil partnerships as an example. The ESA might regret having to tell a school that it was acting outside the law, but it would have to do so. A school may be forced to act against its ethos, but tough; that is the law. The board of governors might think that, under the provisions of freedom for religious expression in the Human Rights Act 1998, there is room for debate and that the matter is fact-specific enough to allow the board to make a case. However, the ESA would say that, ultimately, it takes the decisions and it does not think that the school is acting within the law.

2172. That may not be the best example; nevertheless, there are issues of religious conscience. For example, if a sex education code of practice were introduced for the whole of the UK that certain Churches said they did not want, the Government would say that it must be taught in all schools because it is in legislation. That is the kind of conscience issue that may come up.

2173. Who will be the defender of a school’s ethos in that case? The ESA will simply say that its interpretation of the law is different. That is the problem. I am using that simply as an example.

2174. Mr McCallion: There was a rumpus when a British Airways staff member wore a crucifix in public. Did it do the individual any good? Did it do the airline any good? Did it do the lawyers any good — yes, it did; they made a great deal of money.

2175. Mr B McCrea: They always do.

2176. Mr McCallion: However, it did not do anybody else good. It did not do community relationships in that organisation any good either, as it created tension between Sikhs and born-again Christians who could see no reason why they should not be allowed to wear the cross. At present, such tensions as exist in schools are local problems, and the people who should resolve them are the boards of governors.

2177. The Acting Chairperson: I think that we have covered the issues thoroughly. Thank you for your presentation.

2178. Dr Dermott: Thank you for listening to us and for your questions. I also thank my colleagues for their constructive answers.

2179. We support an administrative rationalisation, but we oppose the creation of an all-powerful controller. We seek amendments to the Bill on the employment of staff, the protection of ethos, and school governance management. We would also like responsibility for procurement to rest with boards of governors, and an aspiration towards 90% of the education budget going to schools not into bureaucracy.

2180. The Acting Chairperson: I welcome Stephen McConnell, the chairman of the Northern Ireland Voluntary Grammar Schools Bursars’ Association (NIVGSBA); John Robinson, the vice-chairman; and Shane McBrien who is a committee member and bursar of St Malachy’s College. There will be 10 minutes for your presentation, gentlemen, and then we will ask questions.

2181. Mr Stephen McConnell (Northern Ireland Voluntary Grammar Schools Bursars’ Association): On behalf of our association, I thank the Committee for affording us this opportunity to speak about the Education Bill.

2182. The association represents bursars in 51 voluntary grammar schools throughout Northern Ireland. In those schools, the bursar is normally responsible to the governing body for the conduct of their school’s financial affairs, business management and for the material state of the premises and grounds. Bursars are professionals who usually have qualifications in management, accountancy and/or law. A bursar has many responsibilities, but, perhaps above all, the bursar’s role in voluntary schools is an enabling one that allows the school to carry out its function of educating children.

2183. From the outset, I must say that the association is in favour of achieving greater efficiencies in the education sector and of improving education outcomes. Today’s presentation is more than narrow self-interest because our association has been assured that the role of bursar will continue in some shape or form within the ESA framework. Nevertheless, there are aspects of the proposed Education Bill that we believe will lead to greater inefficiencies and therefore be counterproductive.

2184. Of the 51 voluntary grammar schools, 29 are owned and governed by the trustees of the Catholic Church; the remaining 22 are owned by their own trustees and run by boards of governors. Most, if not all, of those schools are long established and have an enviable record of education outcomes over many years.

2185. The chief characteristics of the voluntary schools are: trustees own the land and buildings; the trustees’ responsibilities are usually set down in a foundation deed of trust, which sets out the aims of the school and the obligations that fall on the trustee governors; schools’ recurrent funding comes directly from, and therefore they are directly accountable to, the Department of Education — there is no intermediate body; their governing bodies employ all members of staff, and they are responsible for recruiting, deploying, managing and paying all those who work for the school; governing bodies are responsible for schools’ financial management; and, in addition to the duties laid down in their foundation documents, schools are charged with carrying out exactly the same statutory duties and responsibilities as every other grant-aided school.

2186. The present system provides clear lines of responsibility and accountability for the delivery of education to a high standard and to avoid unnecessary bureaucracy between funder and provider. Over the many years of their existence, the schools have demonstrated that they can use public funds effectively and efficiently for the benefit of their pupils.

2187. The original proposals in the review of public administration suggested that the relationship between schools and the ESA should be characterised by maximised supported autonomy. Furthermore, it said that the new arrangements must have sufficient flexibility to accommodate schools that wish to avail themselves of differing degrees of autonomy. The RPA highlighted the importance of maximising schools’ autonomy, whereas, in contrast, the proposed Education Bill will reduce the autonomy of voluntary schools by transferring significant control to a centralised body.

2188. By establishing the ESA, the Education Bill will remove the employing-authority role from boards of governors; undermine the voluntary principle of school governance, due to the command-and-control structure proposed by the ESA; introduce a one-size-fits-all education system; and contradict developments in the UK, where the Government’s stated desire is that there should be diversity of school-management structures, and where the focus is on maximising autonomy at local level in schools, as evidenced in the growth of city technology schools, trust schools and city academies.

2189. One of the key factors enabling voluntary schools to develop and maintain a distinctive ethos is the right of boards of governors, as the employing authority, to employ, promote, discipline and carry out employment-law functions for their staff within a policy framework set by the boards.

2190. As members heard earlier, one of the key roles proposed for the ESA is underscored in clause 3, which states that the ESA will employ all staff in grant-aided schools. Contracts of employment for all staff in voluntary schools are at present with the board of governors of each school. That means that board members are responsible for the key decisions of appointing and dismissing staff, who are selected in accordance with the ethos of the school, which may be academic or linked to a particular religious denomination.

2191. Staff have an affinity with and loyalty to their schools, the values, ethos and traditions of which they seek to uphold. However, boards of governors will no longer be considered the employer if contractual responsibility for all staff lies with the ESA and not with boards of governors. Under the legislation, the ESA as employer could redeploy staff between institutions, and that may result in staff having no affinity with or loyalty to a particular school. Staff may not, therefore, have the same motivation to drive up standards of attainment or to enforce discipline as they do at present.

2192. Clause 4 contains provisions for the preparation of employment schemes for all grant-aided schools; those schemes must be approved by the ESA under clause 6. If a scheme is not considered to be in line with the guidance issued by the ESA, that body has, under clause 6(2)(a) the reserved power to make an employment scheme for the school, which:

“shall be treated for all purposes as if it had been prepared by the submitting authority of the school".

2193. We believe that that is unduly prescriptive and dictatorial and further dilutes the autonomy of boards of governors.

2194. All staff will have a standard contract of employment with the ESA, and because they will have no affinity with a body employing more than 50,000 staff, they will carry out only those duties outlined in their standard terms and conditions of employment. For example, it may be the case that staff will no longer voluntarily assist with sporting activities or organised school trips. It is therefore imperative that voluntary schools’ boards of governors have the right to retain staff contracts of employment and remain the employing authority. It is accepted, however, that some schools may wish to have the ESA as employer while others may wish it to provide a supporting role in assisting with the drawing up of contractual terms and providing legal advice as and when required.

2195. It is essential that the Bill be amended to give boards of governors the crucial right of employing and managing staff, with the ESA being given a supportive function in this context if required. We also believe that there has been a serious underestimation of the challenges that lie ahead should the ESA take control of the voluntary sector.

2196. Although we understand that the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) are not strictly applicable in this instance, in practice, the ESA, as the employing authority, would take over the employees from the various current employers under their existing terms and conditions of employment. The TUPE regulations preserve employees’ terms and conditions when a business or undertaking is transferred to a new employer. The new employer takes over the contracts of employment of all employees who were employed at the undertaking immediately before the transfer. The new employer takes over all rights and obligations arising from those contracts of employment and any collective agreements made on behalf of the employees that were enforced immediately before the transfer.

2197. All non-teaching and support staff in the voluntary sector have widely differing roles and responsibilities. Transferring all those staff to one employer could leave the ESA open to a raft of legal challenges, as staff working under one employer will compare the differing terms and conditions of employment throughout the sector. That will apply equally to teaching staff who, when under one employer, will expect to be awarded the same responsibility points as staff of other schools carrying out similar duties. As each voluntary school is autonomous, there is little read-across of salary and conditions of service, which will be difficult to administer for the new umbrella organisation. It is very likely that that will raise issues of equality and job evaluation when the new agency is only bedding in.

2198. Key governance provisions in the Bill can be found in clauses 30 to 33. Schools will further lose their autonomy by virtue of the standardised schemes of management. Such schemes must be approved by the ESA. If a scheme is not considered to be in accordance with the guidance issued by the ESA under clause 32, the ESA can make a scheme of management that will be treated as if prepared by the submitting authority. Such a scheme will regulate the membership and procedures of boards of governors, as well as the management of schools and relations between boards of governors, principals and any other persons specified in the scheme. It is the association’s opinion that that is likely to involve a prescriptive and bureaucratic model of school governance. The ESA will have the power to appoint governors as considered necessary and the power to choose community governors who may not be approved by individual boards of governors.

2199. The key benefit of the existing model is the ability of schools to attract governors from a wide range of professional backgrounds to volunteer to serve on boards. Many such governors have a long-standing relationship with a particular school, together with specific expertise that adds greatly to the management of a school. In future, under the conditions outlined in the legislation, it is likely that the schools will have great difficulty in attracting governors with relevant experience. Governors may not give of their time and expertise freely when the main managing authority will be the ESA and when they will be required to operate within a framework of stringent rules that may not be to the best interest of individual schools.

2200. From the outset, I wish to say that the associations and relationships that bursars of voluntary grammar schools have had with the Department of Education and its voluntary grammar finance branch, with regard to financial management and procurement, have been excellent throughout the years. All our schools are accountable to the Department of Education, each being subject to the Department’s financial auditing arrangements, and are rigorously audited annually, with the production of both internal and external audit reports prepared by independent professionals. The internal audit is carried out in order to ensure that robust systems of control and governance are in place. External audits provide assurances as to the stewardship of the funds provided by the Department and the financial stability and viability of schools.

2201. In addition to the funds received from the Department, many voluntary schools receive additional funding from parents and benefactors. We believe that the standardisation that will inevitably result from the Education Bill will lessen the incentive to make such contributions in future. That will ultimately put an additional strain on the public purse.

2202. A number of voluntary schools also carry out additional educational activities outside those that are directly grant-aided by the Department. Such activities generate non-public funds, which should not come under the proposed legislative framework. Although the Bill is largely silent on procurement, it is understood that when the second Bill is introduced there will be further legislation that will considerably reduce the autonomy of voluntary schools through centralising the procurement function, which could undoubtedly lead to increased costs and inefficiencies.

2203. To allay genuine concerns about preserving the ethos of schools and maximising the autonomy of school governance, the proposed legislation must be amended. There should be no alteration of the role of boards of governors as the sole employing authorities for voluntary schools. Individual boards of governors must retain the autonomy that will allow them to make decisions that are in the best interests of their schools: that must be reflected in the legislation.

2204. The association cannot find evidence to suggest that the proposal to enable the ESA to manage voluntary schools, as outlined in the Bill, will result in improvements to education administration and achieve better outcomes.

2205. The Acting Chairperson: Thank you. You mentioned additional funding in your presentation and in your written submission. How much additional funding is received?

2206. Mr McConnell: I cannot give you an exact figure for the whole of the sector. However, I can speak for my school, which receives an additional £100,000 a year for the secondary department. My school also has a preparatory department and a boarding department. The revenue generated by the boarding department is close to £750,000. We employ all the staff in the boarding department, and we manage the funds from the fees that come in from boarding pupils. We do not believe that the ESA, which would have no conduit to those funds, should be the employer of staff that we employ by virtue of those non-public funds.

2207. Mr John Robinson (Northern Ireland Voluntary Grammar Schools’ Bursars Association): May I add to that? My school is Methodist College. We receive revenue in excess of £500,000 a year from parents and voluntary contributions. That money is used entirely in the secondary department and is accounted for in that department. Without it, we could not provide the services that we provide for the children who attend the school. It is very straightforward.

(The Chairperson [Mr Storey] in the Chair)

2208. The Chairperson (Mr Storey): I thank Nelson McCausland for chairing the meeting in my absence.

2209. Miss McIlveen: Thank you for your presentation. You made a comment about teaching staff. If I were a teacher and knew that a teacher in another school was being paid differently for doing the same job, I would be asking questions. You also talked about the organisation of trips, and so on, which might be curtailed under the ESA. As a teacher in a previous life, I know that many teachers work beyond what is in their contract. They do what they feel is necessary, and to say that they would be bound by contracts is a bit cynical.

2210. You also said that because a voluntary school is autonomous, there is little read-across regarding salaries and conditions. Have you done any work in order to address that or to get a feel for what the differences may be?

2211. Mr J Robinson: Voluntary schools are slightly different in that, as Stephen said, many have preparatory departments and boarding departments. There is more of a difference in terms and conditions than there is in pay. In our school, for example, we run janitors on a continuous rota system. I understand that that is different from almost any other school in the Province. That is one example, but terms and conditions are the key issue.

2212. Our message is that the nature of life, and people, is that people react better when their employer is local and when they know who their employer is. I have no great issue with ensuring that staff are properly remunerated in line with that across the sector. In fact, teachers in voluntary schools are paid on exactly the same basis as those in the controlled sector, and I do not know of any exceptions to that. There may be some enhancements for the additional work that they carry out and which is line with the salary policy, but, generally, that is not a great issue.

2213. We are saying that the change, and the move towards that change, is difficult. On the basis of many years experience as a manager outside the education sector, I believe that the key message is that people have an affinity for a local employer. The key factors are: who holds the contract, and who deals with discipline and grievances in the normal employment relationship. The board of governors have control of those issues in voluntary grammar schools.

2214. Miss McIlveen: It also involves an interpretation of how local is local. We are not talking about an organisation that is based across the water; it will be reasonably local without being located in a school.

2215. Mr J Robinson: The key is that it should be in the school and in the board of governors of the school.

2216. Miss McIlveen: Is your primary concern around commitments?

2217. Mr J Robinson: Yes — and teaching staff. Teaching staff look to the board of governors of the school as their employer if the employment relationship is correct.

2218. Mr O’Dowd: Thank you for your presentation. I also noted the issues that Michelle raised. You referred to auxiliary and support staff at your school, and I see that they are also mentioned in your letter:

“The Regulations have the effect that employees employed by their respective Board of Governors would automatically become employees of the ESA on the same terms and conditions."

2219. To me, that is why the ESA should be in place. Recently, the Minister diverted more than £1 million to ensure that voluntary schools’ classroom assistants had the same terms and conditions as other classroom assistants. Should the Minister take that money back?

2220. Mr McConnell: I do not wish to get into an argument over classroom assistants.

2221. Mr O’Dowd: I do — but perhaps I am being unfair to you in that sense.

2222. The public purse was opened up and more than £1 million was taken out to ensure that staff in your schools received the same terms and conditions as other staff. Today, you are arguing that the ESA is a bad idea because all staff will be on the same terms and conditions. That is a crazy argument.

2223. Mr J Robinson: The argument is about the transition and the difficulties in setting up the ESA.

2224. Mr O’Dowd: A lengthy and exhaustive process of job evaluation has taken place. In the beginning, the job-evaluation process was not managed properly. When I was Chairperson of the Public Accounts Committee, we reported on the matter. However, the process is now in place and is ticking over. Therefore, ensuring that employees in your sector are on the same terms, grades and conditions as those in other sectors would not be a major problem.

2225. Mr McConnell: In any industry, a job-evaluation process will increase costs. Therefore, that would impact on the education budget. The first job-evaluation process started a number of years ago, and there has been significant erosion in the differentials in the rates of pay between, for example, ground staff and cleaning staff. In some schools, therefore, it is almost better to be employed as a cleaner in the afternoon than as a clerical officer. A job-evaluation exercise will be carried out for clerical staff. What will happen is that suddenly everyone’s rate of pay will increase. There is no bottomless pit of money from HM Treasury. Therefore, we are being realistic in saying that the exercise will cost the Government significantly more money.

2226. Mr O’Dowd: I do not think that that is the reason that you are arguing against it. You have the right to give that response, but I do not accept it.

2227. Mr J Robinson: To add to that response, the key point is that there are differences in the job descriptions of some staff. I will give an example that applies to classroom assistants in our school. We compared their job descriptions with the job-evaluated description and found that they are virtually the same; there is no substantial difference. Therefore, our classroom assistants will be given the money when it comes through. We consulted them and told them that we hope that that will resolve the problem with terms and conditions. Let me stress that I do not think that any voluntary grammar school will ever argue about not paying their staff a proper rate for the job. However, there are differences between the schools as regards job descriptions.

2228. Mr O’Dowd: Job evaluation has managed to go across five boards. It has been a very difficult process and has gone through many hoops, hurdles and mistakes. However, the process is in place now, so I assume that it can be applied to 30 voluntary grammar schools.

2229. Mr J Robinson: That is exactly our point.

2230. Mr O’Dowd: I am surprised that you are not able to tell us how much voluntary contributions there are across the board. I can tell you how much public contributions there were last year — in the region of £250 million went into the voluntary schools. I note that your presentation states that there are clear lines of responsibility and accountability, and I think that you were referring to education and funding. What are the clear lines of financial accountability for public funds? How are you audited? Have you ever been audited by the Audit Office?

2231. Mr McConnell: As I said in my presentation, we are audited annually, both internally and externally. We are audited by professional chartered accountants. We submit our annual audited accounts to the Department by 1 June each year, in line with the Treasury’s Faster Closing initiative. We also have internal audits that examine the internal control systems in schools, and the Department of Education receives those internal audit reports. We constantly submit returns to the Department monitoring our financial affairs. The Department receives an initial estimate from us each year on how we will spend the money. That is reviewed in November each year, and a further review of that is sent to the Department. The Department monitors our surpluses and deficits. If there is a surplus or deficit of more than 5%, the Department asks the board of governors in each school what they are doing about it. As far as accountability for the money that we get is concerned, we are very accountable to the Department and to the public purse.

2232. Mr O’Dowd: The CCMS, the education boards, Comhairle na Gaelscolaíochta, and so forth, have to present themselves quarterly to the Minister and explain how they are accounting for the money spent. Do the grammar schools do that?

2233. Mr McConnell: We do not have to meet quarterly, but, as I explained —

2234. Mr O’Dowd: When was the last time that you went before the Minister of Education to discuss your accounts?

2235. Mr McConnell: We have never done so.

2236. Mr J Robinson: It would not be a problem for us, but it would not be appropriate for us to do so, because we are not the proper body to meet as regards accounting for the money that goes into the voluntary grammar sector. It would have to be the GBA, or some other body, and I am unaware of the arrangements in place between that body, or individual schools, and the Department.

2237. Mr Elliott: Items 27 and 28 in your presentation concern additional education activities outside those that are directly grant-aided by the Department. Will you elaborate on that? I understood that those took place in all schools, including schools in the controlled sector. How does that differ in the voluntary grammar sector? What are your concerns in that respect?

2238. Mr McConnell: I was making reference to activities in boarding schools and preparatory schools.

2239. Mr Elliott: Would it have any effect on day schools?

2240. Mr McConnell: No. The only additional funds that would be applicable to day schools are the voluntary contributions from parents, which have the effect of reducing schools’ deficits.

2241. Mr Elliott: Are you saying that there would be an issue with staff in the respect? Or, would it be an issue because of the ESA?

2242. Mr J Robinson: The issue has not been sorted out. The ESA chief executive designate has met us on a couple of occasions, and for that I thank him. We have been told that staff who fall within the educational sector will be employed by the ESA. There is a difficulty with that in that some staff will have a couple of masters. For instance, a boarding department is not that educational, and funding comes from parents towards boarding. That is one issue that needs to be resolved.

2243. Mr Elliott: I have noticed a common theme among various associations that have provided evidence to us, and paragraphs 23 and 24 of your submission echo that point when you state that policy is not being reflected in the Bill. Perhaps, we should ask this of the departmental officials, but I would like you to expand on that. I know that you have limited your concerns to one point, but is that the only point that you have or is it broader?

2244. Mr J Robinson: The original documentation, the policy paper and our initial meeting with people involved with the setting up of the ESA — which was some time ago — assured us that maximum autonomy would be given to the schools that could deal with it. That assured us to some extent, but it took us more towards the academy model, which is happening in England, and our own models. The Bill is a disappointment, because it seems to be prescriptive in all the areas — and certainly in employment.

2245. We believe that there may have been some movement on the employment of staff. The Bill states clearly that staff will be employed by the ESA. We understand the need for efficiencies, and so on, but that is a fundamental change — and, as a manager, I do not believe that it is a change for the better. I am not arguing for worse terms for anyone; I am arguing, from the management perspective, that this is not the best way forward.

2246. Mr Lunn: Thank you for your presentation. I want to pick up on one point, which you have highlighted in your submission. You are concerned about clause 18(1) of the Bill, which states that:

“ESA may do anything that appears to it to be conducive or incidental to the discharge of its functions."

2247. Why are you so concerned about that? It comes at the end of a long list of functions and duties that are being given to the ESA. It seems like a tidying-up line to cover anything that may have been forgotten. You say that it provides all-embracing powers; it does not. The words are further qualified later in clause 18. The same words are used in clause 19, which deals with the powers of the ESA to undertake commercial activities, and it is qualified by certain restrictions. If that line were not part of the clause, would it make a difference to what the ESA can or cannot do? I do not know why you are concerned about it.

2248. Mr J Robinson: Again, I refer to the submission by Mr Lockhart, and his comment about the law of unforeseen eventualities. We are concerned about the clause because it allows the ESA to make adjustments and regulations should something crop up that may not have been foreseen during the passage of the Bill. Therefore, I — not as a lawyer, but as an accountant — will find it helpful to have some qualification of the clause. You are quite right: it is a catch-all clause, and I imagine that that is why it has been written into the Bill. If I were drafting the Bill, I would do exactly the same — I would include a clause that allows some flexibility in future rather than have to go through the churn of the legislative process all over again.

2249. Mr Lunn: My guess is that there is probably a similar clause in existing legislation governing the activities of the present governing bodies — we can ask the departmental officials about that later. Have you checked that legislation, or have you just picked this clause out and said: that is appalling; we cannot have it in the Bill.

2250. Mr J Robinson: We are dealing with, and commenting on, the legislation that is in front of us. As for other legislation, there would usually be a little more qualification.

2251. Mr Lunn: Well, we are not going to agree. I just wondered why the matter was so important to you.

2252. The Chairperson: Obviously, that is a concern for the Committee. Previously, we told the Department that if it is not in the legislation, we are going to have difficulty with it.

2253. I will conclude this session by asking a question that was asked in an earlier session, and it relates to clause 8, which deals with employment schemes. If there were a system of independent appeal, or if the Assembly had the power to regulate and control the ESA guidance and model schemes, would that address some of your concerns about employment schemes and other schemes of management?

2254. Mr J Robinson: Again, I agree with what Mr Lockhart said. I deal with employment law and employment issues in our school. What is being proposed would create an unwieldy bureaucratic means of dealing with the issue.

2255. As regards schemes of management and accountability, many of our schools have schemes of management with the Department. I can speak only for myself, but I have no issue with that. Lawyers are often quoted as saying that employment law is the second most difficult area of law. We deal with that area of law, and I do not think that it would be helpful to introduce other layers of bureaucracy into the arrangement between employer and employee given that employment issues can be difficult to deal with in general.

2256. The Chairperson: Stephen, Shane and John, thank you very much for your presentation. You are welcome to stay for the remainder of the meeting. I now ask the departmental officials to join us — undoubtedly, they have been imbibing all that has been said in the past hour or so.

2257. The Department sent the Committee a response to the GBA paper, but I suspect that, after today’s session, other issues will also need to be dealt with. Mr McGrath, I am sure that the Committee will agree that the paper submitted by the GBA today should be given to you, and that we should continue to consider the issues raised in that paper, in this presentation and in the Department’s response. The paper was sent yesterday, so members should have received it. John, I am in your hands.

2258. Mr John McGrath (Department of Education): I am glad to be with the Committee again. Chris will lead off on the Department’s response to the initial paper.

2259. Mr Chris Stewart (Department of Education): We welcome the opportunity to consider the presentations and hear the evidence from the Governing Bodies Association (GBA) and the Northern Ireland Voluntary Grammar Schools’ Bursars Association. It is clear that we agree on a great deal and that we disagree on some fundamental points, which I want to concentrate on in my presentation.

2260. I am conscious that the Committee is pressed for time, so my presentation will be shorter than it might otherwise have been. It is important to set the context and to remind ourselves of our aims. There, we begin to see the commonality of view between ourselves and the GBA. The RPA arrangements are based on autonomy for schools and on the aim that schools are best placed to run their own affairs but with accountability for their actions and for the educational outcomes that they produce. We intend to achieve that effect through the Bill.

2261. I want to respond specifically to the GBA’s three major areas of concern: its objection to the proposed employment arrangements; its objection to the proposed governance arrangements for schools, and comparisons with legislation in England and Wales.

2262. The GBA has argued consistently that the employment arrangements will result in a loss of autonomy for some schools. We recognise and acknowledge the genuine sense of loss in those schools. However, the Department contends that there is no real loss of autonomy, because boards of governors will remain responsible for the exercise of employment functions and will take employment decisions that the ESA will be under a legal duty to put into effect. Our policy aim is to ensure that that degree of autonomy is available to all schools on the basis of equality, rather than to some schools on the basis of historical differences in ownership.

2263. The GBA contends that the Bill will not have such an effect, that decision-making powers will rest with the ESA and that boards of governors will be restricted to making suggestions or requests. That is not the case. The Education Bill makes it clear that boards of governors will make decisions — which is the phraseology used in the Bill — not recommendations on employment matters. We have referred to clause 8(2) several times, and it is worth remembering its content and meaning. That clause’s effect is that the ESA may not lawfully refuse to put into effect boards of governors’ proper decisions on employment matters.

2264. Mr Lockhart spoke earlier and made a number of points to which I want to respond. His central point was that the separate employment arrangements that pertain at present somehow offer those schools a degree of freedom that they would lose under the proposed arrangements to interpret the law. As I have confessed to the Committee many times, I am not a lawyer, and I rely on legal advice. The legal advice is that I have received is different and states that schools do not enjoy that degree of freedom.

2265. If a board of governors, in its role as employer, proposed to act outside the law, the Department would prevent that and would exercise its powers of direction. If, for some reason, the Department failed to act, in a case of unlawful dismissal, a tribunal would have the power to impose a substantial fine or to order the reinstatement of the member of staff. Those arrangements will pertain irrespective of whether we continue to have separate employers or whether the ESA becomes the single employer. That advice has been provided by the Departmental Solicitor, who is also the chairman of employment tribunals and has considerable experience in such matters.

2266. Furthermore, the GBA suggested that it is not possible to put the proposed arrangements into effect in law. Mr Lockhart said that only the ESA would be present at employment tribunals and courts. Again, our legal advice is different and states that a court or tribunal would automatically join to the proceedings any body or person who played a part in the matter that was the subject of complaint. Therefore, the board of governors and the ESA would be represented in proceedings by order of the tribunal or the court.

2267. The GBA argued that it is not possible to achieve the Department’s desired effect in law.

2268. However, not only is it possible — it has already been done. We have discussed schedule 2 to the Education (Northern Ireland) Order 1998 in the Committee on several occasions. Several key points in respect of that schedule — which refers to controlled schools — are worth emphasising.

2269. It is solely for boards of governors to determine staff complement; there is no role for the employer in that regard. It is for boards of governors to draw up and implement disciplinary rules and procedures, and the employer’s role is limited to one of consultee. Boards of governors and principals — not employers — have the power to suspend staff and to end suspensions. Crucially, it is for boards of governors only to take decisions on the dismissal of staff. The only exception to that is if a member of staff becomes ineligible for employment; for example, if their registration to teach is revoked.

2270. Those provisions demonstrate that boards of governors can, and will, be given an autonomous statutory role in employment matters, including dismissal. There are also clear and effective duties on the ESA, as the employer, to put the lawful decisions of boards of governors into effect. Schools may feel that they have a degree of freedom in how to interpret the law, but that is not the case.

2271. The GBA has stated its opposition to the provisions in clauses 30 to 33 very clearly. Those clauses require each school to draw up a scheme of management, taking account of guidance produced by the ESA, and to submit that scheme to the ESA for approval. We find it difficult to understand the GBA’s objection and, indeed, its description of the arrangements as a striking transfer of power. Grant-aided schools are publicly funded institutions that deliver a key public service. The Department contends that it is reasonable and necessary to require each school to have clear governance arrangements and to abide by them. In essence, we are saying that schools must have rules and stick to them. We do not regard that as an unreasonable requirement or a striking transfer of power.

2272. In its paper, the GBA suggested that only failing schools should be subject to those requirements. That seems to suggest that we should have a statutory duty to bolt the stable door long after the horse has disappeared over the horizon; we do not think that that is an appropriate way forward. The legislative requirements are not new; they have been in statute since 1989. Article 9(a) to 9(d) of the Education and Libraries (Northern Ireland) Order 1986 requires schemes of management to be prepared and submitted to the Department for approval and contain powers for the Department to modify and impose — or default — on those schemes. The provisions in the Education Bill are very similar to those arrangements, but the approval role rests with the ESA rather than with the Department.

2273. The GBA drew comparisons with the legislation in England and Wales and suggested that that legislation might be a better route for us to follow. There is a Chinese proverb: “be careful what you ask for — you might get it." It is worth bearing that proverb in mind when considering the relevant legislation, namely the School Standards and Framework Act 1998. That Act is more prescriptive and contains a broader range of intervention powers for local education authorities than anything that we have proposed for the education and skills authority.

2274. The equivalent of management schemes are known as instruments of government in English legislation, the key provisions of which are section 37 and schedule 12 of the 1998 Act. Schools are required to draw up instruments of government that they must submit to local education authorities for approval. That is very similar to the Northern Ireland provisions, but the key difference is that schools here will have more flexibility to shape their schemes. Schools in Northern Ireland can tailor their schemes of management and take account of the ESA guidance. By contrast, schools in England are legally required to draw up instruments of government in prescribed form and with no scope for variation.

2275. I now turn to the intervention powers of local education authorities and the ESA. We have striven to maintain that the emphasis is on schools self-improving. Schools are to be supported and challenged — but not controlled — by the ESA, and the ESA’s intervention powers are to be kept to a minimum. Action to raise standards and tackle underperformance will be schools-led. Following inspection, the legislation will require a school — not the ESA — to produce an action plan detailing what action that school proposes to take to address an inspection’s findings.

2276. The interventions regime under the English Act is rather different. In England, LEAs may, depending on a school’s performance, issue a formal direction that requires the school to take specified actions; appoint additional governors, overriding the school’s instrument of government; suspend the delegation of a school’s budget; take over the role of setting a school’s staffing complement; remove a governing body’s right to appoint or dismiss staff; and direct a governing body to dismiss staff.

2277. By contrast, the ESA will have no such powers; it cannot direct schools with regard to raising standards; it cannot withhold grants; it cannot interfere with a school’s staff complement or the appointment of staff; neither can it direct the dismissal of staff. The strongest powers in Northern Ireland legislation, which are rather less extensive than any in England and Wales, are reserved exclusively by the Department and will not be in the hands of the ESA.

2278. The GBA said that legislation in England and Wales is preferable to proposals in the Education Bill. However, a comparison demonstrates that the English legislation is more prescriptive; offers less flexibility to schools in determining their governance arrangements; and gives much greater powers of intervention to local education authorities than anything in current legislation or anything proposed in the Education Bill.

2279. The Chairperson: Thank you, Chris. I am more worried about Irish blarney than Chinese proverbs. The worry, which you have heard repeated by the Committee several times and to which Trevor referred earlier, is that there is a sense that the Bill creates a catch-all scenario; provisions are made and powers are given that cover every eventuality. Organisations that have attended the Committee today, such as the Northern Ireland Voluntary Grammar Schools Bursars’ Association and the GBA, are still not convinced that the legislation will not manifest their worst-case scenarios.

2280. For example, as regards clause 8, does the Department not feel that to allay concerns, there should be adequate provision in the legislation for an independent appeals mechanism subject to resolution, control or regulation by the Assembly? Would that be helpful?

2281. Mr C Stewart: I recognise that many of the concerns of the GBA, the bursars’ association and, indeed, other stakeholders’ focus on the fact that much of the detail, particularly on employment arrangements, does not appear in the Bill. However, it will appear in guidance and in the schemes of employment when they are drawn up. The aim is to reduce bureaucracy and the degree of prescription in legislation. However, I understand the concern that arises when that detail is not seen in writing; it is perfectly natural to have some concern about what the content might be.

2282. There are two possible approaches, one of which we have discussed previously in the Committee. The first is explicitly linking the role of the ESA in such matters with article 101 of the Education and Libraries (Northern Ireland) Order 1986 and the Department’s power to direct and provide a vehicle for an aggrieved party to complain. The Department would then investigate the matter. If necessary, it would issue a direction to correct any malfeasance on the ESA’s part.

2283. The second mechanism, to which some of your questions pointed earlier, is to provide a scrutiny, challenge or overseeing role for the Assembly, and there is a way to achieve that. We could propose that that detail be contained in guidance. The alternative is to put it in subordinate legislation or regulation, which, of course, could be made subject to Assembly control and would always be subject to scrutiny by the Committee.

2284. We have sought wherever possible to avoid doing that, because, as we have said before, the volume of education legislation is extremely large and we do our best not to add to it unnecessarily. However, if it is felt that we need to be more prescriptive and to provide more clarity in legislation rather than in guidance, there is a mechanism that allows us to do that.

2285. Mr O’Dowd: Do staff in voluntary grammar schools have more or fewer employment rights now than those working in the controlled or maintained sector?

2286. Mr C Stewart: I do not see how that could be.

2287. Mr O’Dowd: Are there any plans to introduce independent, free-standing employment legislation to back up proposals of the education and skills authority? Is there a raft of employment legislation to which the ESA or any other body must adhere? Every time that you draft a Bill, do you have to add the employment legislation to it? Is the ESA rewriting or adding to existing employment legislation?

2288. Mr C Stewart: The answer to those questions is no.

2289. Mr John McGrath (Department of Education): It is not in our power to do that. The law on employment will remain as it is now after the ESA has been set up; the ESA does not affect the legislation one way or the other.

2290. Mr O’Dowd: If a voluntary grammar school’s board of governors interviewed an applicant for a job for which he or she was best qualified, could the board of governors decide not to give the job to him or her because they did not like the look of that person? I am not saying that they would want to do that, but could they?

2291. Mr McGrath: They should not do that.

2292. Mr O’Dowd: I am not suggesting that they would want to but whether they could under existing legislation.

2293. Mr McGrath: The law of the land on fair employment applies to voluntary grammar schools no less or no more than it applies to controlled schools, maintained schools or any other employer.

2294. Mr O’Dowd: Concerns were expressed that the ethos of a school could be undermined by the ESA’s being the employing authority. However, boards of governors will conduct interviews and appoint staff, and that will not be undermined.

2295. Mr C Stewart: Ethos is always subject to the law; we touched on this issue several times with the Committee. The Committee has also discussed, and expressed its views on, the exemption on teacher recruitment in the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO). That is why we posed that question in response to the Governing Bodies Association paper that sought clarification on additional exemptions in respect of fair employment and equality legislation for which it appeared to be arguing. Given the existing FETO exemption, it was not clear what additional legislative requirements the association sought to have disapplied to voluntary grammar schools.

2296. The Chairperson: Chris made a point earlier about the mechanisms that we could use to address those concerns, through either a direction subject to article 101 of the Education and Libraries (Northern Ireland) Order 1986 or additional regulations. Would it be possible to make proposals or prepare a paper on that?

2297. Mr C Stewart: As a technical challenge, it is certainly possible. We would have to seek a view from the Minister. I am not aware of any technical difficulty that would prevent such a course of action.

2298. The Chairperson: I want to bring this session to a close because we have a commitment to Portadown College, whose representatives, I am glad to say, have joined us. Will the maintained schools, controlled schools, voluntary grammar schools, integrated schools and various other types of schools in Northern Ireland have equality in the employment schemes? Once the ESA has been established, will we be able to say, without any shadow of doubt, that all schools will be administered and treated equally and that no sector will have any advantage — through any sleight-of-hand or historical accident or privileged position — over any other?

2299. Mr C Stewart: I sense that you are looking for a straight answer and that answer is yes.

2300. Mr Lunn: Will you comment briefly on the bursars’ concern about clause 18(1)? It states that:

“… ESA may do anything that appears to it to be conducive or incidental to the discharge of its functions."

2301. Mr C Stewart: On first reading, clause 18 appears to offer a degree of latitude to the ESA that might give rise to concern; however, it does not. The qualification that something must be conducive or incidental to the discharge of the ESA’s functions is important. There has to be a direct link between what the ESA wants to do in the discharge of its statutory functions and the education legislation. Therefore, the clause does not allow the ESA to set up private companies that can do something that is not connected to education.

2302. However, apart from that, it is a fairly standard provision that would routinely be inserted into legislation to establish any new non-departmental public body delivering a public service. There is an almost identically worded clause in the Libraries Bill, and, if my memory serves me correctly, in the health and social services RPA legislation. Therefore there is nothing unusual about it.

2303. Mr Lunn: Could the ESA step outside that rule to do something that could be construed as not being conducive to its normal activities?

2304. Mr C Stewart: Specific departmental approval will be required for some of the things that the ESA will be entitled to do. In addition, more generally, if the Department felt that it was doing something that was not sufficiently related to its statutory functions in legislation or to the priorities that the Department has determined for it, we would step in very quickly with a formal direction if necessary.

2305. Mr McCausland: The folk from the Governing Bodies Association suggested that the ESA would be very bureaucratic and, therefore, a substantial portion of the budget would be spent internally in the ESA rather than going to schools. How do you see that working out? Will moving from the boards to the ESA reduce or increase bureaucracy and, therefore, the amount of money kept at the centre?

2306. Mr McGrath: A key objective of the ESA is to rationalise many of the administrative functions across the five boards and organisations and to bear out savings. The Department will consider the targets that it will set for management costs and bureaucracy, and the Minister has a clear view that she wants to get as much money out of the education budget to the front line of schools. That is a general objective above and beyond issues around voluntary grammars and in schools in general.

2307. Mr McCausland: What will the target be?

2308. Mr McGrath: We have not decided on the target yet.

2309. Mr McCausland: As much as 90% could go to schools.

2310. Mr McGrath: The Committee has had various discussions on the issue, and it would be helpful to get clarity about what we are counting. The amount of money in the Minister’s budget that goes into schools now — whether it is earmarked or is part of the agreed school budget — will increase over time; however, the scope to do that is limited by the expectations with regard to efficiency savings in future budgets and by cost pressures. Nevertheless, it is a general objective. We want to reduce educational bureaucracy to the minimum necessary to deliver an effective service and to get as much money as possible into classrooms.

2311. Mr McCausland: When will you have that figure?

2312. Mr McGrath: It will not be a set figure, but rather a figure over time or for each year.

2313. Mr McCausland: What will the initial figure be?

2314. Mr McGrath: I have said to the Committee before that the Department will want to consider setting an envelope for senior management costs in the ESA. That will address concerns that the Chairperson expressed about its structure at the beginning and about whether it could expand willy-nilly. Therefore we will want to put an envelope on it. We would like to get more information and agreement on the precise percentage of money that goes into classrooms, because different figures have been quoted from LEAs across the water. The Minister may want to set an objective for the ESA over a three- or five-year period and change the percentage over time.

2315. Mr McCausland: That may not happen. However, the ESA will be established on 1 January 2010, which means that the target must be set before that date. At what point during this year will that happen?

2316. Mr McGrath: It will be a target as part of the general oversight of the ESA to be delivered as it comes into full being. The ESA will not reduce or increase the amount of money into classrooms in three months at the end of the next financial year. However, it could be a target for 2010-11 to 2011-12.

2317. Mr McCausland: On 1 January 2010, will there not be a reduction in the amount of administration?

2318. Mr McGrath: There will not be an automatic reduction on 1 January 2010.

2319. Mr McCausland: When the ESA comes into being and the boards cease to exist, they will no longer employ people; therefore the reduction will have happened at that point.

2320. Mr McGrath: The people who are employed by the boards on 31 December 2009 will be employed by the ESA on 1 January 2010. Therefore, the rationalisation process will take a bit of time.

2321. Mr McCausland: How long will it take?

2322. Mr McGrath: That will depend on each sector. Gavin Boyd has appeared before the Committee to talk about the work that was done in the various sectors. The departmental overseers will have to say how long the process will take. However, we should not underestimate the management challenge of welding together seven or more organisations.

2323. Mr McCausland: Before we are asked to sign off on a Bill we need a clear steer from you on its benefits in real terms, and a target figure would give us some indication. The argument is being made to us that slimming down administration will put more money into schools, which is great. However, you must have an estimate; you cannot be working totally in the dark. When can we get an estimate? I do not want to overstep the mark, but it is incumbent on the Department to produce an estimate of the increase in money that will go to schools.

2324. Mr McGrath: I must be careful about what I say: I do not want to feed out figures about savings, because they will then be expected when the ESA is established. We operate in a wider budgetary context; we have 3% efficiency savings to realise at present, and all the indications are that that figure will increase. Therefore any savings made might have to be used to deliver on efficiency savings targets. If we have to make 3·5% efficiency savings in future, the last place that we want to make them is in the classroom. We may set a figure for the percentage of the overall money that goes into the classroom, but that does not necessarily mean that many of the savings will flow if we have efficiency savings —

2325. Mr McCausland: Yes, but you would be taking out only 3%. I assume that you are trying to make a much bigger saving than 3% by rationalising the system.

2326. Mr McGrath: Yes, but the 3% figure is for the entire education budget. If you were to turn that into a savings figure on the smaller amount of an administration budget, it could be 10%, 15% or 20%.

2327. Mr McCausland: Therefore there may not be any money coming out of schools.

2328. Mr McGrath: There may or may not. As a percentage of the money that has been spent, the Minister has an objective to increase extra money, but she does not know what efficiency target will be set. Therefore, it would be either premature or brave to give a figure for the amount of savings that will automatically be made in the front line when we do not know the efficiency cull.

2329. Mr McCausland: We know how much is being spent on the boards of administration. By this stage, Gavin Boyd must have some picture in his mind about the structure and the related costs and salaries. What is the difference? What will the saving be? What money will go to meet the 3% cuts or be put into the hands of schools? When will we have those sums? When will Gavin Boyd know the cost of his new regime?

2330. Mr McGrath: I do not know exactly when he will have answers to those questions. As he said the last time that he gave evidence to the Committee, work is being done on what models will be in certain areas. You are correct that once that has been done, he will be able to work out what the broader picture will look like and how much money will be saved by certain stages. I do not know how long that will take. We can try to find out.

2331. Mr McCausland: We are now in early March, and the Bill’s Committee Stage will run until some time in September. Can you assure us that we will have a figure before the end of the Committee Stage? Otherwise we are being asked to buy a pig in a poke.

2332. Mr McGrath: We will do our best to get the information for which you ask.

2333. The Chairperson: How will that relate to the business case, about which serious issues were raised? Has there been a revision of the business case for the reasons that Nelson McCausland gave? Not revising it creates the impression that everything is vague and hopeful, which is no way to enact legislation. We expect schools and the other parties involved to sign up and be accountable and show where money will be spent, yet we are allowing the ESA to come into existence on a very flimsy and ad hoc basis. We are being asked to agree to look at the ESA in three years’ time and amend it if necessary, but that is not the reason why we are bringing it into existence.

2334. Mr McGrath: I disagree with that perception. There is a business case on the establishment of the ESA.

2335. The Chairperson: It is only an outline business case.

2336. Mr McGrath: Outline is a technical term used by DFP; outline business cases are detailed, rigorous documents. One then moves to a final business case, which is why the previous one is called an outline business case. However, outline business cases still have to be made to green-book standards and with Treasury guidance.

2337. The Department’s outline business case demonstrates that establishing the ESA will save up to £20 million in the first three years; that will create a vehicle in the ESA to rationalise education administration and draw out further savings. The Department is wary of getting the long-term figure up front because it could be offering hostages to fortune. However, the outline business case is one of the more robust pieces of evidence for RPA changes. If it were regarded as flimsy, some of the other institutional changes are flimsy as well.

2338. The Chairperson: When will we move from outline to final business case before the ESA is brought into existence?

2339. Mr McGrath: Work is in hand to move from the outline business case to the full business case, as required.

2340. The Chairperson: Could the Committee get an update on that?

2341. Mr McGrath: Yes. However, I have had this conversation with you already and with the previous Chairperson. The Department would be hesitant about writing down sure-fire savings over time in a business case. We know that we will have to deliver efficiency savings, and we believe that the ESA is the vehicle to tackle rationalising administration and, as far as possible, make saving that will not affect classrooms. That is the Department’s firm belief.

2342. The Chairperson: No doubt, Mr McGrath, the Committee will return to that issue.

2343. Mr Elliott: I have several issues, but I know that we are pushed for time so I will limit them.

2344. The Chairperson: I assure you that we will come back to them.

2345. Mr Elliott: The last issue worries me, and Mr McGrath’s answer that the Department is reluctant to put something down on paper worries me even more.

2346. Mr McGrath: The Department made it clear that the key objective of the ESA — along with raising standards — is to enable savings to be brought out from the current education administration, to sweep them up and, ideally, to get them into the front line. That is the objective. However, at the minute that is difficult, and I would be nervous about offering up a figure that could be taken as Gospel and almost as a contribution towards savings before we even have a further 3% target. Those figures could be taken as opportunistic savings, and we would still have to make 3% savings targets above and beyond that, which would be punitive.

2347. Mr Elliott: With your indulgence, Chairperson, I think that we will return to that at some stage.

2348. Chris Stewart used the example that the GBA used earlier about defending a case at tribunal, saying that the ESA and the board of governors would be there. Who would take the lead; who would be the defence at the tribunal?

2349. Mr C Stewart: It would depend on the nature of the complaint and the matter that was being complained about. If, for example, it were a dismissal and the ESA had acted on an instruction from a board of governors to dismiss a member of staff — I am not a lawyer, let alone a tribunal chairperson — I would have thought that the lead party would be the board of governors, since it was the body that had taken the action that had led to the dismissal.

2350. Mr Elliott: Therefore the ESA would be the secondary party as the main employer?

2351. Mr C Stewart: I do not know that I would place a great deal of emphasis on who is named first or second.

2352. Mr Elliott: It would be a huge issue, especially for a board of governors.

2353. Mr C Stewart: Not necessarily; the tribunal or court would decide where the balance of responsibility or blame lay and would apply its judgement on remedies or damages accordingly.

2354. Mr Elliott: That is why the Committee wants those who will be responsible to be made clear in the Bill. I appreciate that there will always be legal arguments; however, that highlights the difficulties. I use that as an example, as it shows the ambiguity in the system.

2355. I have another issue that I want to tease out, but I will have time at some other stage.

2356. The Chairperson: Who pays for the process, and will they all be represented separately? There are many matters to be satisfactorily resolved.

2357. Mr C Stewart: There is a short and a long answer to that question. The short answer is that if something goes wrong with employment in the public education service, although the taxpayer would meet the monetary costs, education and children would also have a price to pay because money that should have been spent in classrooms would have been wasted on other matters. Whichever body the court or tribunal fines initially is a matter for the court or tribunal; however, in a publicly funded service, ultimately, the taxpayer pays.

2358. Mr O’Dowd: With respect to Nelson McCausland’s question about the budget, is it not the case that the Department must accumulate some £20 million of savings by the third year of the comprehensive spending review?

2359. Mr McGrath: Yes. Under the CSR, we must realise savings of 3% per annum compounded. With that in mind, we indicated that establishing the ESA under the original timetable would, by the third year, contribute £21 million of savings. There are some concerns about the timetable being delayed, but the savings are already in the bag and, of course, accounted for. We are, however, wary about predicating decisions on possible savings down the line, which may already have been accounted for in the next budgetary process. That is a real concern for us, because we might have to find yet another 3% of savings.

2360. The Chairperson: Thank you. We will ensure that you receive copies of today’s submissions from the GBA and the bursars’ association; in addition, we will ensure that the GBA receives a copy of your response to the issues raised. This is not the end of the matter. I thank you again for your attendance, and, no doubt, we will see you again next week.

18 March 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mrs Mary Bradley
Mr Tom Elliott
Mr Trevor Lunn
Mr Nelson McCausland
Miss Michelle McIlveen
Mr John O’Dowd
Mrs Michelle O’Neill
Mr Edwin Poots

Witnesses:

Cardinal Seán Brady
Mr John Gordon
Bishop Donal McKeown
Bishop Patrick Walsh
Sister Eithne Woulfe

 

Northern Ireland Commissioner for Catholic Education

Mr Donal Flanagan
Mr John Gordon
Ms La’Verne Montgomery
Bishop John McAreavey

 

Council for Catholic Maintained Schools

2361. The Chairperson (Mr Storey): Cardinal Brady and delegation, you are very welcome to the Education Committee meeting this morning. Thank you also for making your submission to us in writing; members have had it for a few days. The acoustics in the Chamber are not great, so please bear that in mind. It would help us all to hear your submission clearly so that there will be no confusion. Please make your presentation, Cardinal, and then members will ask questions on it.

2362. His Eminence Cardinal Seán Brady, Archbishop of Armagh and Primate of All Ireland (Northern Ireland Commission for Catholic Education): Thank you, Mr Chairman. On behalf of the Northern Ireland Commission for Catholic Education (NICCE), I would like to thank the members of the Education Committee for their kind invitation to discuss our submission on the draft Education Bill. We are very happy to do so.

2363. The Northern Ireland Commission for Catholic Education speaks for the trustees of the entire family of Catholic schools; that network consists of some 550 nursery, primary and post-primary maintained and voluntary schools in Northern Ireland.

2364. I am joined this morning by some of the members of our commission: Bishop Patrick Walsh, a former Bishop of Down and Connor; Sister Eithne Woulfe, Sister of the Order of St Louis, a religious order that has schools across Ireland, including Kilkeel and Ballymena; and Bishop Donal McKeown, chairman of the commission. We are joined by Mr John Gordon, legal adviser to the commission. We are happy to answer any questions that you might have regarding our written submission.

2365. Before addressing that submission, however, I am conscious that we meet in the aftermath of the brutal murders of Constable Stephen Carroll and Sappers Cenzig Azimkar and Mark Quinsey. I consider those crimes an attack on the whole community. They were an attack on the democratic will of people across this island and on their overwhelming support for the institution in which we are gathered this morning. I am therefore mindful that we are engaging with you today as democratically elected Members of the legislative Assembly. We are engaging in the privileged context of a democracy — a privilege that we can never take for granted. We do so with great respect for you and for your role as politicians.

2366. I am mindful too of our shared duty as elected and as civic leaders to do all that we can to consolidate the progress already made towards a more secure, confident and reconciled future for everyone in our society, not least for the young people.

2367. As trustees of Catholic schools, we are fully committed to playing our part in building a more peaceful future for all in our society. As stated in our publication ‘Building Peace, Shaping the Future’, our society in Northern Ireland has been characterised by profound conflict, and those charged with the education of our young people have an important role to play in breaking down barriers of ignorance, misunderstanding and suspicion. Our schools cannot carry the full responsibility for reconciliation on their own, but we recognise that they have an important part to play.

2368. The publication went on to state that tolerance and respect for difference are at the heart of all Christian and human education. That brings me directly to our submission on the draft Education Bill — respect for diversity is one of the key values underpinning that submission. We see respect for diversity as part of the contribution that Catholic schools make to our society. We also see that respect for diversity as part of the obligation of society to Catholic and, indeed, other schools.

2369. In Britain, the Republic of Ireland, and many other parts of the world, the provision of publicly funded, faith-based schools — or other schools founded on a particular philosophical, cultural or linguistic ethos — is accepted as a normal part of society. I hold that the provision of a diverse range of schools is the mark of a mature, tolerant and reconciled society. Since that is the type of society to which we in Northern Ireland aspire, it follows that we should provide for a variety of schools, based on available resources, from which parents may choose.

2370. The principle of diverse provision is also recognised and protected in international instruments on human rights. Notably, protocol 1, article 2 of the European Convention on Human Rights upholds the right of parents to have their children educated in a manner consistent with their religious or philosophical convictions. As trustees of Catholic schools, we have a duty to strive to ensure that that right of parents is adequately respected and provided for in the Education Bill.

2371. As the Bill stands, we remain unclear as to how certain key aspects of the proposed legislation will operate. We therefore have significant reservations about our ability to support key aspects of the Bill in its current form. Perhaps the Committee will address our concerns.

2372. Before outlining some of those concerns, I want to make it clear that any right that we seek to have respected or any provision or resource that we seek for Catholic schools, we seek for each and every provider of education in Northern Ireland. Therefore we support those elected representatives and others who uphold the principle of equality in education policy and provision in Northern Ireland.

2373. In doing so, we are conscious that some people may have the impression that the Catholic sector is somehow advantaged over other sectors in Northern Ireland; that is historically incorrect. Indeed, until relatively recently, the Catholic sector received less support from the state than any other sector. However, it is true that when other sectors transferred ownership of their schools to the state, the Catholic community maintained its ownership; that took place at considerable financial cost to the Catholic community, particularly to our Catholic parishes. However, it was a cost that generations of Catholics were willing to bear in order to guarantee the ethos of their schools and the right of parents to have such schools. Responsibility for ensuring the continuation of that right falls to us as the trustees of Catholic schools in Northern Ireland, and it is a right that we will strive to uphold in all circumstances.

2374. However, as trustees, it is becoming increasingly clear to us that one consequence of the decision of the Transferor Representatives’ Council (TRC) to hand their schools over to the state is that many parents from other Christian traditions, as well as those from other cultural, ethnic or linguistic backgrounds, believe that their right to have schools with a particular ethos is not adequately provided for. On behalf of the Catholic trustees, I want to make it clear that we will lend our wholehearted support to any legislative or policy change that facilitates the right of parents from other religious, cultural, linguistic or ethnic backgrounds to be more adequately addressed.

2375. To ensure adequate provision for parents who choose a Catholic education for their children, we have highlighted in our submission several key issues that need to be further clarified or addressed in the Education Bill. There are three critical issues on which we are happy to elaborate in our response to Committee members’ questions. First, there is a need to clarify the role of the education and skills authority (ESA) as the employer and/or the employing authority. The proposal in clause 3 for the ESA to be the employer of all staff in all schools is unacceptable; it is a fundamental impediment to the ability of owners/trustees to exercise their right and duty to promote and guard the ethos and defining character of a school. To exercise our duties as trustees adequately, we require that the board of governors of each school be the legal employer of all staff in their schools. As it stands, the provision in the Bill appears to run counter to the principle, which we support, of giving maximised autonomy to schools. Therefore we suggest that further clarification is needed on clause 8.

2376. We accept that the functions of each sectoral support body will be as agreed between the Department of Education and the owners/trustees as stated in policy paper 21. The functions of a sectoral body will be complementary and will not duplicate or overlap with the functions of the ESA. That should be reflected in the proposed legislation. The business plan submitted by the Catholic trustees addresses any fears that members of the Committee may have about the proposed scale of such a body for the Catholic sector — or indeed for any other sector; we are not trying to create a new Council for Catholic Maintained Schools (CCMS). However, we need adequate support to enable the discharge of functions that properly belong to owners/trustees. That would also avoid the necessity of the ESA having, in effect, to negotiate key decisions with every individual school in a given sector. Those support bodies make sense in terms of value for money and good administration.

2377. They have already been shown to play a key role in raising standards. Policy and/or legislation provision must be made for their role in supporting schools in the appointment of teachers, particularly at leadership level; their role on behalf of school owners in the planning and provision of schools; their advocacy role on behalf of a given sector; and their role in supporting and developing ethos.

2378. Similarly, there is no point in having such support bodies if schools in a sector can ignore them. Therefore, it is critical that legislation place a duty on boards of governors to co-operate with the support body in their respective sector. Strong and committed boards of governors are required to maximise autonomy and to ensure the ethos of a school. Clarification is required on the appointment of community governors. It is essential that legislation reflect the importance of making such appointments in consultation with owners and trustees.

2379. That is a short overview of the main issues that we want to bring to the Committee’s attention. Thank you for giving us the opportunity to explain those issues directly. We are happy to take questions — at least my colleagues are. [Laughter.]

2380. The Chairperson: You have delegated autonomy on the commission’s behalf, Cardinal. First of all, Cardinal, the Committee endorses your opening comments on the recent murders. One of the soldiers who was murdered in Antrim will be buried today, and our thoughts and prayers continue to be with those who have suffered as a result of those heinous crimes. We welcome everyone in our society’s condemnation of those events.

2381. We appreciate the candid way in which you have raised issues. In the past weeks, the Committee has listened to the concerns of several organisations, and we will continue to take oral evidence from relevant organisations to establish plainly how the Bill can be amended to become more acceptable. Your remarks underscored an issue that has been prevalent in our deliberations — the lack of clarity. A more than considerable mist still hangs over the detail — or lack of detail — on the ESA, particularly on the issue of employment and the employer.

2382. Last week, the Committee heard the Governing Bodies Association (GBA) raise its concerns, which the Department dismissed in a subsequent rebuttal. As the process continues, there seems to be — as with most issues in Northern Ireland — two camps. The various education providers are of the opinion that there is no clarity on the employer issue. However, the other body of opinion — primarily the Department — believes that there has been a misunderstanding and maintains that there is clarity in the Bill and that it contains no threat to the various bodies that raised concerns.

2383. Members should indicate their desire to ask questions, because I do not want to ask all the questions; I am sure that the Committee will agree that I have never done that. Cardinal, will you and your team clarify the current representation of trustees on boards of governors?

2384. What influence and consultation rights do trustees have in the appointment of other members of a board? Is the representation and influence not sufficient to enable trustees to trust boards of governors to safeguard the ethos of Catholic schools in formulating schemes of management and employment? Is that not enough to ensure that the ethos is developed and maintained by a body that is significantly accountable to trustees?

2385. Dr Brady: I invite Bishop Walsh to take that question, because he has much more experience of serving on boards of governors in this part of the world than I have.

2386. Most Reverend Patrick Walsh, Bishop Emeritus of Down and Connor (Northern Ireland Commission for Catholic Education): That is a very important question. We talk about the ethos of a school, and we all know that each school has its own character. However, it is essential to us that the entire Catholic sector has an overarching ethos, and that is what we seek to maintain. It is the responsibility and duty of bishops, religious and trustees to determine the overarching ethos of each school, and each school also has its own particular character within that ethos.

2387. We expect every member of the board of governors of one of our schools to subscribe to the ethos of that school; there is no point in appointing someone to the governing body of a school who is not in agreement with the general ethos of that school. The CCMS, of which I was a member for many years, had several members who were not of the Catholic faith. However, those people were totally in tune with the ethos for which the CCMS stands, and they made a valuable contribution. Irrespective of their tradition, no one who does not accept the ethos of one of our schools should be a member of the board of governors of that school.

2388. Under the current composition, trustees have the right to appoint directly four members of a board of governors; there is also an elected teacher, an elected parent and so on. Until now, the Department of Education has appointed its two members in consultation with the trustees, and the education and library boards have done likewise in the maintained sector. Those appointments have always been made in consultation with trustees, and we want the new legislation to ensure that that continues. I understand that the relevant schedules of the Education (Northern Ireland) Order 1998 and of the previous Order still apply and that there will be meaningful consultation with the trustees with regard to appointments.

2389. We have no problem with the ESA having the right to make appointments — whether two, if that is the number decided — to the board of governors of our schools, provided that those appointments are made in meaningful consultation with the trustees. It is for that reason that we have asked for the phrase “in consultation with" to be used in the legislation rather than simply “consulting". That should ensure meaningful consultation rather than allow people merely to say, “We have consulted; end of story." We want serious and meaningful consultation and, therefore, assurance that those who are appointed to the board of governors of a school subscribe to the ethos of that school.

2390. Most Reverend Donal McKeown, Auxiliary Bishop of Down and Connor (Northern Ireland Commission for Catholic Education): We all want a more effective and efficient running of our education system. The Government have the legislature, the Executive and the judiciary; similarly, there is a range of bodies in the education system between which a balance must be maintained. Those bodies include the Department of Education, the ESA, the trustees and owners of schools and boards of governors; they all have vital and complementary roles to play in the running of schools. We have a sense of a sectoral identity, but governors are committed to running their schools.

2391. It is a question of striking a balance between harnessing the passion of individual governors and their commitment to their schools — which has raised standards across the educational community in Northern Ireland — and the broader educational communities. There are balances to be struck; we do not seek out-and-out control.

2392. Under present legislation, boards of governors have a huge amount of power and trustees have a negligible amount of right. We are trying to determine how to ensure that all education stakeholders — which is now, according to a radio programme this morning, a very unpopular term — can assert their rights without disturbing the equilibrium at the heart of the education system. We do not seek a Stalinist, centralist control: we want to maximise how devolved responsibility can be exercised in the interests of pupils while maintaining a cohesive system and cohesive sectors.

2393. The Chairperson: The commission’s submission stresses the role of the employer as the person or body with the power; even more so than the issue of ownership. I noticed that your submission draws a distinction between the employer and the power of the trustees.

2394. Under the current arrangement, the CCMS employs teachers and the Department employs non-teaching staff. If we take what the commission proposes to its logical conclusion, the commission would like the power that is the domain of the CCMS with regard to teachers given to individual boards of governors. That would lead to boards of governors being the employers of all non-teaching staff.

2395. Is that not a step back from a more streamlined and efficient way of governing our schools? We will discuss clause 8 in a minute or two, but I want to tease that point out first. The submission rightly refers to attempts to achieve more streamlining. If we started with a clean sheet, we would not be starting from here, but to use a well-worn phrase — which the media may no longer find acceptable — we are where we are. The sectors, the institutions and the bodies govern and are responsible for education. However, do you not see that there could be a conflict between trying to achieve a more streamlined way of governing our schools and what is sought in your submission?

2396. Dr McKeown: At present, there is a wide variety of relationships between schools and their employees. The voluntary grammar sector employed everybody — it chose when to employ, when not to employ, when to promote and so on; whereas the CCMS used a comparatively light touch as an employing body. That ensured that a school followed correct procedures in the appointment of staff, but the boards of governors made the decisions. With the education and library board situation, people had to go through a board of governors and then pass on a number of names. We want to find the most effective method.

2397. We are keen that as much responsibility as possible should be devolved locally to avoid having multiple tiers of filters through which matters must proceed. We seek effectiveness and efficiency, and it is possible to balance those. The last thing that we want to do is add more layers in attempting to remove the multiplicity of layers that we have at present.

2398. The voluntary grammar sector has demonstrated its ability to manage its resources effectively and accountably.

2399. If that model works for some schools, then as much authority as possible should be devolved to them. That should be done in the interests of good education, the raising of standards, and it should be done in such a way that the schools are accountable.

2400. The Chairperson: Some people might dispute that the CCMS could be described as having a light touch. I have never heard it described as such before.

2401. Dr McKeown: I was referring to appointments.

2402. The Chairperson: I appreciate that. I am sure that the CCMS will be able to rebut that comment when it appears before the Committee later. Bishop Walsh, do you want to comment?

2403. Dr Walsh: Bishop McKeown has summed up the position. The voluntary grammar sector, in which the schools are generally large and have plenty of resources, has shown that it has experience in that area; there are strong boards of governors and they have been well able to make successful appointments. Schools in the maintained sector have seen the value of the CCMS having a “light touch" in assisting them to make appointments.

2404. Some small schools would not be in a position to make appointments without some assistance, and perhaps the support bodies could provide that. However, in general, schools should be given as much autonomy as possible.

2405. The Chairperson: I wish to speak personally, rather than on behalf of the Committee, about one of my concerns. I would like locally delegated autonomy, which has been the domain of the voluntary grammar schools, to become the domain of all schools. That autonomy has been the envy of the non-grammar schools, and Donal referred to the multiple layers involved in making teacher appointments and choosing one candidate from three. Such autonomy would, therefore, be good for our education system.

2406. Clauses 3 and 8 are causing major concerns. Clause 8 states that the ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters. If model employment schemes and associated guidance were to clarify that and any other points for which you consider clarification to be necessary — and if those schemes were subject to full consultation with submitting authorities and, possibly, an independent appeals system or to regulation and control by the Assembly — would that remove some of the commission’s key concerns?

2407. That issue was touched on at last week’s meeting, and the Committee asked the Department to provide “mechanisms" for how it could be done. If such mechanisms, structures, and regulation were added, would that help to address your concerns?

2408. Mr John Gordon (Northern Ireland Commission for Catholic Education): A pragmatic solution is required. A dispute mechanism would deal with the disputes that arise between boards of governors and the ESA. Disputes within particular schools are likely to be internal; they may relate to selection and recruitment or to disciplinary issues. This is about providing boards of governors with the right to deal with disputes as they deem fit.

2409. Clause 8(2) does not specify who will determine what is lawful. If the ESA approves a scheme of employment and management for a particular school, it should adopt a hands-off approach thereafter, and the school should have the right to choose its own representation at any tribunal or court hearing. The ESA should indemnify the school, as suggested in clause 8(2), although clarification is required about any costs or damages that may be incurred in facilitating a school’s challenge and in dealing with a dispute.

2410. It would be only if it were not possible to deal with a situation that there would be a conflict with the ESA. The ESA should not be directing schools in the minutiae of employment and disciplinary matters. The position on the ground at the moment is very similar. Schools have the power in the maintained sector — and, indeed, the voluntary grammar sector — to conduct and represent themselves at tribunals and courts. That position should continue.

2411. The Chairperson: To clarify the issue: are you saying that provision for appeals and other mechanisms would only resolve disputes between boards of governors and the ESA and would not address the fundamental problem?

2412. Mr Gordon: Yes.

2413. The Chairperson: So, there is a need to go further than appeals and mechanisms?

2414. Mr Gordon: I am not sure whether there is a need to go further. There should be clarification, either in primary or secondary legislation, that boards of governors would have the power. In fact, it is hinted in various papers from the Department and in some of the evidence that was given last week that there would be a clear autonomous employer role for boards of governors. The words “advocacy" and “representation" were used. If that were the case, boards of governors would, obviously, have the right to employ their own lawyers to represent them. Those lawyers, in turn, would represent not only the school but the ethos of the school in the manner in which a case is taken forward to a tribunal or court.

2415. The Chairperson: We always return to the same issue — the need for clarity. In an appeal situation, who would be the appellant and who would represent education? Last week, an eminent legal expert appeared before the Committee on behalf of the Governing Bodies Association; today, Mr Gordon is here. The Department is stating that the ESA may not lawfully refuse to put into effect any proper decision of a board of governors on employment matters. There is now, clearly, a conflict of legal opinion. At some stage, the Committee will have to determine which of the two legal positions it will accept, given all that it has heard. We will obviously have to return to this issue.

2416. I do not want today’s session to be curtailed — if we run over time, so be it, provided that that time is valuable and well spent. I want the commission, the CCMS, and all organisations who submit oral evidence to have the confidence that the Committee will listen genuinely to the arguments. That is our statutory responsibility and duty, and we will carry it out fully.

2417. Mr O’Dowd: Your Eminence, Bishop Walsh and Bishop McKeown, you are very welcome. I have read your speech of last Thursday with great interest, and we have a responsibility to study that speech and consider the concerns that you raise in it, which are clearly deeply felt. Today, you have again outlined many of those concerns; and, hopefully, from this and other engagements, we will be able to clarify the issues and use our best offices to reassure where we can and build a common approach to the future provision of education.

2418. The role that the commission and the CCMS have played in education is invaluable. You have provided an excellent education service through very difficult times in our collective history, and you are, justly, proud of that. We do not want to do anything to damage that provision or the relationship of that provision.

2419. Many of the points that I wish to raise have been raised by the Chairperson, particularly in relation to the role of boards of governors. I think that this is an area in which clarity has to be given, either through further discussions or through some other mechanism. I do not read the situation in the same way as you are reading it — that the roles of boards of governors are being diminished, either in providing ethos or as the employment authority. Will you map out the differences between what is in place and what you see happening? John Gordon already touched on the legal provision and tribunals, but where do your concerns lie about the day-to-day running of schools and employment management?

2420. Mr Gordon: Obviously, there is a difference between the Catholic-maintained and voluntary grammar sectors. In the latter, boards of governors are the employers and have the right to hire, fire and to discipline teachers and pupils alike. Frequently, one finds that voluntary grammar schools have taken out insurance to protect themselves against the costs they might incur were they to end up in court or at an employment tribunal. Therefore, there is complete autonomy in that sector.

2421. On a day-to-day basis in the Catholic-maintained sector, as Bishop McKeown has said, the CCMS has responsibility in statute for the scheme of management, which includes employment, selection and recruitment, and for assisting boards of governors to deal with schools. Schools have the day-to-day decision-making power on issues such as selection, recruitment, hiring, firing and discipline. The CCMS support system makes a valuable contribution to our schools, particularly — as Bishop Walsh indicated — the smaller ones.

2422. The situation is different again in the controlled sector, where schools are subject to the education and library boards. Those boards have their own joint legal services, which provide representation for controlled schools at tribunals and in courts on a range of issues, particularly those relating to the schools estate. I assume that those joint legal services will cross over to the ESA, which will then also have its own in-house legal team.

2423. Mr O’Dowd: As the Chairperson said, we have had three different legal interpretations. That is the nature of legal matters, which is why there are so many solicitors and barristers — we are fortunate to have so many of them. Therefore, the Committee has to do its homework to examine those opinions. However, the ESA is not bringing forward any new employment legislation; it will only interpret and adapt what currently exists. Is that a fair statement?

2424. Mr Gordon: That leads to the crucial statement: who determines what is lawful?

2425. Mr O’Dowd: It would be a tribunal or a judge.

2426. Mr Gordon: If one is providing an autonomous role for boards of governors, then it they who should determine what is lawful, not the ESA.

2427. Mr O’Dowd: In your earlier comments to the Chairperson, you said that the ESA should legally indemnify boards of governors. In such circumstances, a board of governors, as an autonomous unit, would be saying that its interpretation of the law is correct and that it is prepared for its decisions to be challenged in court. Is that what you are saying?

2428. Mr Gordon: Yes; essentially, boards of governors should be given the power to make decisions. That is what happens on a day-to-day basis at the moment. Provided that a board of governors acts responsibly, within the law, and not recklessly, it is indemnified by the relevant education and library board for any decisions that it takes. The safeguard in that is what is referred to in clause 8(2); that boards of governors have a scheme of management and employment that they are asked to adhere to on issues such as selection and recruitment and that that scheme of management and employment respects and enforces current equality legislation.

2429. Nothing is black and white when it comes to selection and recruitment, because the basis and nature of applications can be contested. The board of governors that made the decision in the first instance must determine whether allegations made by an applicant or complainant are valid. It should, subsequently, be afforded an opportunity to defend its decision-making power rather than having the ESA simply overriding it. At present, education and library boards do not deal with matters in that way, and the process should remain as it is.

2430. Mr O’Dowd: However, a defence could be based only on the current law; is that right?

2431. Mr Gordon: That is correct.

2432. The Chairperson: Apart from the veto, or exemption, on recruitment, is the commission seeking any other exemptions?

2433. Mr Gordon: No. The schools will adhere to the current equality legislation.

2434. Mr D Bradley: Good morning, Your Eminence and team.

2435. Autonomy is one of the crucial concepts in this matter, and your paper outlines your support for maximum autonomy. The Department has a different concept, which it calls maximum supported autonomy. Your proposal that employment powers be vested in boards of governors is quite radical, because the view expressed to date is that many of them do not have the capacity to carry that responsibility. Therefore, until now, sectoral support from the CCMS has been required to support and advise boards of governors on employment issues, which are, as we all know, a potential minefield.

2436. To date, the concept of maximum supported autonomy has operated in the maintained sector. However, you talked today about placing that burden of responsibility on schools, and Bishop Walsh mentioned that some of the smaller schools would not be able to deal with employment matters without further support. Are you moving towards the Department’s position on supported autonomy?

2437. That leads to the question: from where would that support, if required, come? The evidence that the Committee has received so far is that the ESA would encourage schools to be as autonomous as possible while supporting them when needed. Bishop Walsh suggested that the new emerging sectoral body, or bodies, should provide that support. Paragraph 7 of your paper states that you envisage a need for:

“Adequate structures of support, co-ordination and solidity for each education sector in Northern Ireland."

2438. How far should that support extend, and to what extent should it be provided for in statute?

2439. Dr McKeown: I will consider the question in the broad sense, and perhaps John will talk about any legal technicalities. We all recognise that having a multiplicity of education bodies was not the most efficient and effective way of administering education. To ensure that best practice can continue, we must take into account the current situation in which some schools have experienced a huge amount of autonomy and in which others accept that they need a great deal of support.

2440. We are not hung up on individual phrases as long as the outcomes benefit young people, serve the common good and work in the interests of reconciliation. From the information in the consultation paper and the advice that the Committee received from the Department in early January 2009, it is quite clear that the role of the sectoral body would be, primarily, to provide advisory, representational and advocacy services, but not front line services. We are not looking for a body to provide those front line services.

2441. If a school can get all the advice that it needs about correct procedures from the ESA, then that is fine; as long as the school is in a position to make its own decisions as much as possible. The CCMS structure seemed to have provided for that by outlining what schools should do and supporting that work, while resting all decisions in the hands of schools.

2442. It seems that we want to take the range of sectors and maximise the best that is currently available in the interests of all. It is important to note that in the review of public administration the most publicly administered schools were not necessarily the most successful. That was not necessarily the most successful way to get the best outcomes. Therefore, the question is how can we build on what is already good in our system?

2443. Mr Gordon: The commission wishes to see the provision of sectoral support — not just to the Catholic sector but to all sectors — reflected in the legislation. It is quite extraordinary that the Catholic sector — the largest sector and provider of education to children in Northern Ireland — is not supported and maintained in the legislation. Yet, I note that the Bill does not seek to repeal article 64 of the Education Reform (Northern Ireland) Order 1989. Paragraph 1 of article 64 states that:

“It will be the duty of the Department to encourage and facilitate to development of integrated education".

2444. That article remains. In addition, Irish-medium education, by virtue of article 89 of the Education (Northern Ireland) Order 1998, is also being retained. Therefore, two smaller sectors within education are, in fact, getting statutory encouragement and support yet the largest educational sector is not receiving such support in the Education Bill.

2445. The Chairperson: Following on from that point, the Department, in its perceived wisdom, says that it is introducing the Education Bill to get a more streamlined and equitable system of governance. I determine from your comments that we will not have such a system because two sectors have a position of prominence over and above the other sectors because of article 64 of the 1989 Order and article 89 of the 1998 Order.

2446. Mr Gordon: The Department has a statutory obligation to encourage and facilitate the development of Irish-medium education and integrated education. The Department has recognised that sectoral support is required not just for those sectors and the Catholic sector, but for the controlled sector too. The Cardinal has alluded to the fact that the commission believes that that support should be extended to all sectors and representatives of the various sectors within education and should be reflected in the legislation.

2447. Sister Eithne Woulfe (Northern Ireland Commission for Catholic Education): I will make a couple of important points about statutory obligations. There is a level of mutual accountability once something is part of a statutory instrument. In this case, education is a common good. Therefore, support services for whatever sectors must provide value for the common good. There should be a mechanism in place to ensure accountability and transparency, and ensure that they are not simply part of a private enterprise. We are talking about public moneys and about something that provides a service to the people.

2448. One of the things that the CCMS has proven, as has research in other jurisdictions, is that ethos adds value. Every group of schools has an ethos, and it is important that, somehow or other, in the context of diversity, each distinctive ethos is promoted — not as segregation, but as some sort of healthy mutuality. It is therefore important that there should be some process of inspection to determine how those support services add value to the education experience of young people, because, ultimately, that is the bottom line.

2449. Mrs M Bradley: Good morning, Your Eminence, and everyone. In your submission you state that the sectoral support bodies should have a role in raising standards, and that that is the Department’s rationale for establishing the ESA. Is there a danger that, with the ESA and a number of other bodies involved in raising standards, we may have a case of “too many cooks", and standards may suffer as a result?

2450. Dr McKeown: You are quite right in putting your finger on the need to raise standards. Too many young people are being failed by the current system, despite the wonderful efforts of so many schools and teachers. There is a balance to be struck between ensuring that we have a streamlined system and maximising the ability of schools locally — to bring in local governors, to work with people to develop links with local enterprises and businesses, and all of that sort of thing, in the interests of quality outcomes.

2451. Outcomes are not simply the result of inputs — they arise from an atmosphere, a sense that, yes, we can do it, and a sense of belonging and identity. I often quote one of our local parish priests in Belfast who says that in his parish, male life expectancy is now 50. There is a shocking level of people being failed by the system, and just having good teachers and good governors is part of the process of dealing with that.

2452. We are looking for what will actually deliver on the ground in particular parts of Belfast or the rest of the country. If that costs appreciable amounts of money, we have to ask whether it is worth investing whatever it takes in order to bring up that tail of young people who are being failed by society. They are falling into addictions, self-harm, depression, and all of those things. We have to ensure that their needs are a priority for us, and that we put in place a system that will ensure quality outcomes, especially for those with the biggest needs.

2453. Many of us would have done well in a hedge school. Our emphasis has to be on what is going to help those who most need support, not just what will look well on a piece of paper as a nice flow diagram. Of course, there has to be accountability and an organised system, but it is important that that is biased in favour of those who have most needs, of one sort or another.

2454. We in the Catholic sector are certainly not looking for any form of unilateral declaration of independence — we are looking to maximise outcomes for everybody, to ensure that reconciliation is a key part of what we do, and to serve the common good. Being a very large sector is not just a privilege, it is also a huge responsibility. We have to ensure that the legislation ensures outcomes, particularly for those who have the greatest needs — there are too many of those in our society at the present time. The taxpayer will pay for the problems that arise from that into the future.

2455. Dr Walsh: In response to Mrs Bradley, it is important that we all recognise the importance of sectoral support bodies, as the Department of Education has done. That is accepted, and we are very pleased about that. As the Cardinal said, in policy paper 21 the roles and functions were spelt out quite clearly, and there is no question of duplicating the roles and functions of the ESA. It is important that the roles and functions of support bodies should be enshrined and made clear in legislation. That is the kind of clarity that we need.

2456. There is one point following from that, which Bishop McKeown has mentioned — we all have to be accountable. It is very important that if a particular support body is obliged to support schools in its sector, the schools are obliged to accept and consult with that support body.

2457. That is also important. Our submission says that schools must have due regard to the ESA’s advice as they would with the sectoral body. I hope that that clarifies our position.

2458. Sister Woulfe: I want to reinforce Bishop Walsh’s comments. There are, probably, three key issues. First, support bodies should be slimline and should not duplicate services that are provided by other bodies. Secondly, as the Chairperson outlined in his introductory remarks, there is a need for clarity, and sometimes the devil is in the detail. Thirdly, there must be clarity in the mediation of interests and accountability, and that important issue should be included in statute. I hope that we will not have too many cooks but will have a richer broth. [Laughter.]

2459. Mr Lunn: Good morning, Your Eminence. Good morning, Bishops. The word “ethos" must be the most used word in this morning’s discussions. If I thought that any of the Bill’s provisions posed a genuine threat to your right to maintain a Catholic ethos in your schools — or to the perceived ethos of voluntary grammars — I would oppose it. However, I see no such threat.

2460. You have stressed the critical link between employment and ethos, and the employment of teachers is of primary concern to you. I am sorry to revisit old ground, but your boards of governors do not employ your teachers. However, paragraph 9 of your submission states:

“NICCE wants to make it clear, in the strongest possible terms, that it regards the right of Boards of Governors of Schools to be the legal employer … as critical to the future provision of schools of a particular ethos and defining character".

2461. That has not been the case to date. An arm’s-length body — the CCMS — has employed teachers, and the ESA will now do so.

2462. I do not know whether the CCMS has a light touch or not, and neither do I know whether the ESA will have a light touch or not; but I do know what the Bill says. Under its provisions, only boards of governors can decide which staff to appoint. That is included in the departmental response; it could not be clearer.

2463. An eminent QC who attended the Committee last week on behalf of the GBA made a similar point. However, no matter how eminent he was, he did not convince me that a problem exists. In fact, he gave one ridiculous example — I will not bore you with it — concerning Irish-medium schools. How do you explain your desire to change the existing system from the CCMS being the employer to individual schools, rather than the ESA, being the employer? Moreover, will you reiterate your problems with the appointment of community governors to schools, where the ESA must, by law, consult trustees? I do not understand your problem with that.

2464. Mr John Gordon (Northern Ireland Commission for Catholic Education): Mr Lunn asked why we want boards of governors rather than the ESA to take decisions. The CCMS shared, fostered and developed the aspiration of Catholic ethos. As Bishop Walsh said, it had an overarching statutory role, which is outlined in the Education Reform (Northern Ireland) Order 1989. The Bill proposes the abolition of the CCMS, but no substitute has been proposed.

2465. You are quite right: if boards of governors have the right to hire and fire teachers and to deal with disciplinary matters, what happens when a legal challenge is made to their decision making? Who represents the board of governors? Is the matter kicked upstairs to the ESA, which would mean that a Government secular body would represent the interests of a school with a particular ethos to foster? It is more appropriate that boards of governors have that power and that they deal with decision making and contested issues themselves.

2466. In the current situation, the CCMS was at idem with any board of governors that it represented. To my knowledge, there is no record of any differences of opinion or difficulties between a board of governors and the CCMS or in a board of governors following advice from the CCMS. The sectoral support body that is envisaged and which we would like to see enshrined in the legislation would perform a similar, albeit reduced, support role in those circumstances.

2467. Dr Brady: Teachers are vital to the ethos of a school. I do not know whether the CCMS had a light touch or a heavy touch, but we have the impression that it had a nearer touch than the Department. That is vital.

2468. Mr Lunn: The witnesses would know better than I whether it had a light touch or a heavy touch.

2469. Dr McKeown: Trevor highlighted the question of community governors. Bishop Walsh made it clear that the corporate body of a board of governors should have some agreed vision for the future. It would be difficult for an integrated school to have someone on its board of governors who opposed the school’s philosophy. It would be difficult for an Irish-medium bunscoil or meánscoil to have a governor who was not really all that fussed about what that school was trying to achieve.

2470. There should be adequate public representation on boards of governors, but cohesiveness is needed on agreed broad principles about what the school wants to attain. Due note should be taken that there should be some consonance between publicly appointed governors and the ethos of the school. The last thing that we want is boards of governors to be in constant conflict over all sorts of things.

2471. That does not mean that the trustees would have to vet appointments, but those who agree to serve on the board of governors of a controlled, voluntary, or any other school, should at least be committed to the broad vision of that school. We are trying to offer leadership, as trustees in the Catholic sector, on some very current issues. It is important that governors are committed to their school, and it is also important to recognise that the trustees have a role in the overall direction in the sector. That must be recognised; otherwise we end up with governors fighting one another instead of running the school. We want to avoid that in all circumstances.

2472. Mr Lunn: Why would the ESA, in consultation with the trustees, want to appoint a governor who did not respect the ethos of a school? The question seems almost hypothetical; but why would that be a problem?

2473. Dr Walsh: Insofar as one can speak about one’s personal experience, it has not been a problem before now. It seems that there has been proper consultation in the voluntary grammar sector and in the maintained sector; we just want to ensure that that will continue. As the Department pointed out, it is included in schedules 5 and 6 of the Education and Libraries (Northern Ireland) Order 1986, and it remains the case.

2474. We would like the word “consult" to be strengthened by a phrase such as “in consultation with" so that there is genuine consultation. So far, that has taken place, but there is no guarantee that the ESA may interpret consulting in the same way. It may regard consultation as simply phoning up and providing two names.

2475. Mr Lunn: The Department appeared to think that that small change in the wording would change the emphasis of the Bill, although I cannot see it myself. I do not disagree with the small change that you propose.

2476. I am pleased that paragraph 25 of your submission is headed “Membership of the ESA"; I have finally found someone who agrees with me. I am slightly worried. [Laughter.]

2477. Dr Walsh: We did not consult you, did we?

2478. Mr Lunn: The proposal that the ESA have a majority of local councillors on its board fills me with dread. Paragraph 25 of your submission states:

“In NICCE our experience of the contribution of elected representatives on such bodies has generally been positive".

2479. I will not go into my thoughts on that, but “generally" means that sometimes it has not been positive, and the current situation of the South Eastern Education and Library Board might provide a clue about why I say that.

2480. Although you have not been specific about what you would like to see, can I take it that you would still like to see local councillor representation on the ESA board but not as a majority — or even close to a majority? Is that a fair summation of what you think?

2481. Dr Walsh: We simply ask for a better balance. It is important that the people who run the ESA will be appointed not simply because they happen to be councillors — or anything else — but because they have a specific contribution to make to educational thought. The ESA should be an educational body, and we are asking for that balance to be struck.

2482. Dr McKeown: Our education system has survived difficult years — with schools often being havens of calm in the midst of a very troubled society. Educationalists have done a reasonably good job of running our education system, and there is concern that non-educational issues might, on some occasions — a minority of occasions — interfere excessively in the decision-making process.

2483. I understand that a majority of the ESA board must be councillors — which is a reasonable, if small, pool from which to draw — because the Assembly will be responsible for passing legislation. It would be inappropriate for the body that passes legislation to be involved in the implementation thereof. We are expressing our concerns. Knowing the nature of Northern Ireland, sometimes political priorities might get in the way of what educationalists might see as other, more important, priorities.

2484. Mr Lunn: I am glad that you raised it in your submission, as we have been able to put it on the record.

2485. The Chairperson: I am conscious that we are running over time. However, I want to ensure that everybody has the opportunity to raise issues that concern them. Nevertheless, I ask members to be conscious of time, because we still have a considerable amount of work to get through.

2486. Before we move on, I want to raise a point about community governors. What is the definition of community? That was not picked up in your submission. How would we define the local community? Is it the faith-based, the geographical or the social community? That needs clarity, and we need more work on the provisions for community governors in clause 35, as they are very broad and should be more defined.

2487. Mr Poots: Just to clarify, the South Eastern Education and Library Board was a quango — 60% of which were not public representatives — that got itself into huge debt, and public representatives stood against cutting special needs provision. We are in this mess because of a quango of appointees, not because of public representatives.

2488. Bishops, you set out your stall in article 7a of your submission quite clearly on a faith-based education, which you say is supported by the European Convention on Human Rights.

2489. It appears to me that there is an inference inherent throughout your submission that the legislation is moving away from your right to provide a faith-based education and that the ESA will undermine your position.

2490. Dr McKeown: We are raising concerns about the legislation’s ability to ensure that, as a sector, we can act in a cohesive manner. The Bain Report of 2006 recommended that sectoral bodies be supported, particularly for planning. The ability to bring schools together — not to knock heads together but to recognise that there are overriding priorities other than local priorities — is very important in the context of the demographic downturn. If we individualise schools excessively, all sorts of influences can become involved in deciding what a school will do, because a short-term action — for example, for the lifespan of a board of governors — seems to be the best way forward.

2491. I go to every monthly meeting of the TRC; I am an agenda item every time, because there is a recognition of the need to ensure that faith-based education — whatever that might mean in future — continues to be accessible. As someone said, in future the problem will not be so much religious difference as religious indifference. The problem with the present system is that, in many ways, there are no secular schools for those who would like an avowedly secular education.

2492. In 20 years’ time, there will be a major reshaping of the alliances and allegiances of the education system in Northern Ireland. We are working with the transferors to ensure parents’ right to have a faith-based education system in Northern Ireland that is in no way damaged by legislation, changes or streamlining. Sectoral bodies must have the right to negotiate and to work together to create new types of schools. If we centralise and individualise schools excessively, we will end up with many small empires without the cohesion of the vision and the value that ethos brings. We are looking for a balance to ensure that faith-based education will be an option for as many people as want to take advantage of it in 20 years’ time.

2493. Mr Poots: Would you accept the argument that the Bill gives schools the right to operate according to their own ethos and practices and brings together various streams in the overall delivery of education under the ESA? The ESA is the paymaster, and he who pays the piper calls the tune.

2494. Dr McKeown: I have no problem with that. However, it is important to recognise what has enabled schools here to deliver the highest quality of education: the ability of individuals and sectors to work together. Fifty-seven per cent of pupils in Northern Ireland do not go to controlled schools; that, as the Chairperson said, is where we are starting from. We are looking for something that delivers outcomes — I keep repeating that — and which will allow those who wish to choose faith-based education in an increasingly secular society to do so. It is possible to ensure streamlining, efficiency and effectiveness within such a system. The danger is that we end up with something that looks well on a flow chart but which does not deliver.

2495. The ability to harness local energy and enthusiasm in a group of schools is very important, as is area-based planning, which the Bain Report was strong on and in which we are at present involved. A balance can be struck. However, excessive paring may not deliver the outcomes that we all passionately want for our schools.

2496. Mr Poots: I take it that the ethos for which you argue and which you support and the autonomy for that ethos is something that you would want for the voluntary grammar sector as well.

2497. Dr McKeown: The voluntary grammar sector has a range of —

2498. Mr Poots: I mean that you would not seek something for your own sector that you would not seek for another sector.

2499. Dr McKeown: We have said that clearly. We have a clear set of documents about the Catholic ethos. The voluntary grammar sector is unified in that it has a particular status in legislation, but there is no agreed ethos for voluntary grammar schools, as far as I am aware. As a former principal of one, I was not conscious of that.

2500. They have a particular interest and structures, but I do not think that there is an agreed ethos for voluntary grammar schools, except in a comparatively limited sense. I think that we have a much broader sense of ethos; however, it is important that those groups of schools and individual schools have the right to be supported in gathering together where they have common interests, because it is all directed towards delivering quality outcomes.

2501. Mr Poots: I take it, then, that you would envisage voluntary grammar schools being in existence for some time to come.

2502. Dr McKeown: They are independent schools. What contribution they make to society and what role they play in the education system is a different matter, but they exist as individual schools, and their autonomy is precious to them and they have every right to maintain it.

2503. Sister Woulfe: Mr Poots argued that the paymaster was the architect-in-chief of a school. The paymaster is responsible for the distribution of the public purse on behalf of the taxpayer, but that does not mean that the paymaster is the arbiter or the creator of the profile of school provision or ethos in a democracy. Democracy seeks to reflect the diversity of society, and that is the purpose of some of the changes. The other purpose — to which we subscribe in paragraph 8 of our submission — is that the Education Bill seeks to establish:

“a more streamlined, coherent and efficient system of education".

2504. That is the core. Everyone here wants an efficient, coherent education system that is not just value for money but also value for the young people in the education system. That does not mean one size fits all, but it places an obligation on the legislation and on the ESA, within its powers, to clarify the role of the constituent bodies and what demands are to be made of them so that some of them do not become privileged.

2505. The voluntary principle of that devolution is particularly important, whether schools remain voluntary grammar or another kind of school.

2506. Mr Poots: Bishop McKeown, in response to an earlier question, suggested that we need to provide “whatever it takes" to deal with the educational tail, but we do not have “whatever it takes". Of a budget of £9 billion, education takes about £2 billion. We do not have much flexibility to provide “whatever it takes".

2507. Would you agree that you have a role to play in ensuring that education is provided more efficiently and at a lower cost-base than at present, given the diverse range of education that it is provided? Should you not co-operate fully to deliver education more efficiently so that more resources go to the youngsters who need them most? Should education not be about children first and foremost rather than about ethos or faiths or anything else?

2508. Mr Gordon: Following up on Mr Poots’s last point, and I am sure that Mr Flanagan will visit this —

2509. The Chairperson: He is a soft touch. [Laughter.]

2510. Mr Gordon: The Catholic sector has, vis-à-vis the education and library boards, provided value for money in representation and education. To return to the initial question, the commission believes that the Education Bill does not go far enough in certain areas. From answers to questions, from the Department’s evidence to the Committee last week, from the Bain Report and the RPA papers, it is clear that sectoral support bodies are necessary.

2511. Since that is the case, and since sectoral bodies represent all sectors in education, why have they not been included in the Education Bill? It makes more sense to include them in it, as you will obtain the trust and confidence not just of the commission but of the Governing Bodies Association and the other sectors that have given evidence to the Committee.

2512. Dr Walsh: Mr Poots spoke about children and ethos, among other things, and since he might have used a throwaway phrase I do not want to quote him exactly. However, putting children’s education first and maintaining ethos do not exclude each other. It is important that children are educated in a school, not in a vacuum or even in a hedge school — even though I know that Dr McKeown would have prospered at one.

2513. Children are educated in schools that have a certain thrust and character, and it is those factors that provide good education in a sector; therefore, they should not be separated out, Mr Poots. Ethos is an important factor in the good education of children, and for us, children are important. We have said that all along, and it is good that children are beginning to take centre stage in the education process. That is what is good for children.

2514. Mr Poots: The reality is that many schools are exclusive.

2515. Dr Walsh: That is another issue and not quite ad rem to this discussion.

2516. Mr McCausland: I have three questions. First, as regards governors and their appointment, you said that at present the Department of Education and the education and library boards, in consultation with the trustees, appoint governors. When I sat on an education and library board school management committee, we were given a list of people who had been proposed as governors, and that list was essentially rubber-stamped. I assume that that list came from the CCMS. Why will it be any different under a new regime?

2517. Dr Walsh: That is unknown. It has always been a question of names being suggested backwards and forwards; that is the kind of good consultation that we require.

2518. Mr McCausland: In my experience, there was no backwards and forwards; it was simply a case of presenting a list to a board of governors to rubber-stamp.

2519. Dr Walsh: Perhaps that was the fault of the education and library board.

2520. Mr McCausland: There was mention that people from the Protestant community work for the CCMS. However, how many people from the Protestant community sit on the boards of governors of Catholic maintained schools?

2521. Dr Walsh: I do not know whether we can answer that question. If the Department of Education suggested a person for the board of one of our schools who was not of our faith but who was fully in tune with the ethos of the school and who was clearly a good educationalist, we would have no problem.

2522. Dr Brady: That question could be answered in the Committee’s session with the CCMS.

2523. Dr McKeown: I have worked with people from the Protestant and unionist community who were passionate members of boards of governors; that is my experience, and I am sure that it applies in other schools.

2524. Mr McCausland: It would be useful to know.

2525. Secondly, you said that if too many councillors were members of the board of the ESA, non-educational issues could be introduced and people could follow political priorities. No one in Northern Ireland is non-political; I have never found such a person. Everyone comes with some political agenda, whether they sit on a board as a politician or as a representative of some other sector. What sort of political issues do you see people pursuing? I find that difficult to envisage.

2526. Dr McKeown: A major element is the planning of the schools estate — the development of new schools and amalgamations. We all have agendas. Inevitably, the agenda of a politician is to be elected, which is a very real part of the important role that political representatives play. I hope that decisions are taken that are not in the interests of people who depend on votes or who want to play to the tune of particular local groups — and I hope that that is the case within the CCMS. Our broad point is that we should ensure that pure, non-election-based agendas are always the dominant ones.

2527. Mr McCausland: If I picked you up right, you are saying that you saw people pursuing political priorities and agendas on estate planning. Can you fill that out a bit more?

2528. Dr McKeown: As someone who was never in the Belfast Education and Library Board (BELB), Balmoral High School springs to mind as an example of when a school is put in a place where it is not needed in the long term. We are simply saying that it is important to ensure that the big picture is always kept in mind, not just the picture for the next four or five years.

2529. Mr McCausland: Should the councillors on the board of the ESA reflect the political community? Likewise, should the other members on the board reflect the composition of the wider community?

2530. Dr McKeown: How representatives are picked will be a matter for the Assembly — the d’Hondt system seems to be valid everywhere. We are also aware that the Education Bill, and certainly its associated documentation, talks about local committees. The last thing that we want is a Balkanisation of education due to the predominance of one community in particular areas. We are looking for a system that will serve the common good. Democracy has to be exercised on the ground. However, we know from our society that there is a danger of Balkanisation, which we want to avoid.

2531. Mr McCausland: There was mention in passing to the current obligation to encourage and facilitate the Irish-medium and integrated sectors. What is your view on equality across the education sectors? Should it not be the responsibility of the state to encourage and facilitate all sectors, rather than giving what might be perceived as special attention to two sectors?

2532. Dr McKeown: In 1989, the Irish-medium sector was miniscule and the integrated sector was also small. At that time, it was right to ensure that such small sectors were given encouragement. Whether such encouragement is required to the same extent 20 years on is another thing. John Gordon was saying that at least those two sectors are recognised on the face of legislation — the end of the CCMS will mean that there is no recognition of the Catholic-maintained sector anywhere on the face of legislation.

2533. Dr Brady: In our presentation, we made clear our respect for diversity, and we said that that should be reflected in legislation and provision.

2534. Mr McCausland: If one goes down the road of saying that all sectors should be treated on the basis of equality, then giving a particular commitment to facilitate and encourage one sector will draw a difference. It would be helpful to ascertain views on that from the various people who give evidence to us on the Bill. Do you favour a more general commitment that the state should be responsible for encouraging and facilitating all sectors?

2535. Dr McKeown: I talked to the transferors at the meeting on Monday. They are concerned about how they can play an important role in developing the current ethos of the schools in which they are heavily involved and to which they have made a huge commitment. Some will regard education supply as being divided, but we have produced a system that is, in global terms, good in many ways. The devolution to, and subsequent strength of, particular sectors is a source of strength, rather than being something of which we should rid ourselves.

2536. Miss McIlveen: Having listened carefully to what you have said and having read your submission, my impression is that you feel under threat from the ESA. What discussions have you had with the Department about your concerns and what was its response?

2537. Dr Walsh: For the past number of years, there has been ongoing communication with senior officials in the Department and we raised our concerns, which focus on employment issues. The Department’s legal advisers gave their opinion; our adviser, Mr Gordon, also has a view, and, as was strongly hinted, the Governing Bodies Association also brought an adviser to the Committee.

2538. Having listened to today’s discussion, legal matters and the interpretation of law are becoming core issues. Is the Committee thinking about bringing some of the lawyers together, rather than hearing one view and then another? Perhaps the lawyers could tease out the legal issues in the presence of the Committee — is that too much to ask? Perhaps some members are lawyers.

2539. The Chairperson: I do not want to be a referee at that meeting.

2540. Mr McCausland: It would be an expensive meeting.

2541. Dr Walsh: We would ask Mr Gordon not to charge a fee.

2542. The Chairperson: Is that the basis on which he is here today? Perhaps I should not ask such questions.

2543. Miss McIlveen: We could speak all day about ethos, and so forth; but, as someone who does not come from the same faith, I find it difficult to understand its importance. However, let us consider other models, particularly in Scotland, where schools are owned by the state but have maintained their Catholic faith and ethos. Have you spoken to your counterparts there or in other jurisdictions?

2544. Sister Woulfe: Yes.

2545. Miss McIlveen: Will you elaborate?

2546. Dr McKeown: We meet the Scottish Catholic Education Service and their counterparts in England and Wales every year. In addition, we are part of a much bigger network of providers of Catholic schools throughout Europe. We are involved in ongoing dialogue, not only to maintain our existing system but to determine the best practical ways forward. The Scottish model provides one perspective, and our submission reflects that the right of minority groups of schools to continue is guaranteed in legislation in various parts of these islands. We want to ensure that that continues to be the case here, because we wish to serve the common good, and the examination results that we produce demonstrate that we are doing so.

2547. Miss McIlveen: From your written submission and what you have said today, I get the impression that you simply want to hold on to what you have and perhaps gain a bit more if you can during the period of transition, rather than being more progressive and considering what might be better for the wider Northern Ireland.

2548. Sister Woulfe: With respect, Miss McIlveen, your comment misses the point. The issue is one of a commitment to providing education in Northern Ireland for all young people. However, there is also the recognition and commitment to offer options within that provision. That is part of the diversity. For some people, their vision of education contains certain nuances. People want to bring up their children in a particular cultural environment, and for many, that has a religious dimension, whereas for others it does not. I am thinking not only of Northern Ireland, but of Europe when I say that. We all recognise that we are living in a time of huge and rapid transition on this island.

2549. It is not about grabbing what one can, so to speak; it is about offering something for the common good in schools that promote an ethos with a particular vision of, and purpose in, life. These schools are open to all, not just to children whose families are from the Catholic tradition. They are open to anyone who wishes to participate in them. It is also open to participating in communities of learning, which are very much part of the emerging context in this part of the island.

2550. You asked whether we have studied what is happening in Catholic schools in other parts of the world. We have. You mentioned the Scottish model, which arose from early twentieth-century legislation. In recent times, there has been significant legislation in England and Wales. Furthermore, legislators in France, Belgium, Holland, Spain and Italy have worked on the matter, and, as well as having state systems, those countries have state-funded diverse education systems.

2551. The place of religion in those countries varies according to the jurisdiction. However, a religious ethos is not just founded on the faith dimension, nor is it just about the period of worship; it informs how things, such as discipline, are done. There is a dialogue between faith and culture; it is not about indoctrination, because education is fundamentally not about indoctrination; it is about enabling people to be critical thinkers at an appropriate age. For example, four-year olds are not critical thinkers in the same way as 24-year olds.

2552. There are different forms of education, and a one-size-fits-all system would do nothing for society. In any kind of democracy, one must allow for diverse voices, and that is partly why we are here. Although we represent Catholic interests, we do not deny the value of other interests as education providers — we endorse them. We mentioned the controlled sector, the Irish-medium sector, the integrated sector and the transferors, and we acknowledge the value of them all. In some ways, we recognise the value of them working alone; however, in other ways, we see the value of them working together, and that is happening. That is why support is required for each sector here, and, in order to ensure that that support is healthy and accountable, it must be integrated in legislation.

2553. The Chairperson: Roman Catholic schools became part of the state system in Scotland in 1926, and that was followed by the Education (Scotland) Act 1980 and so on. In light of that, do you believe that the ethos of those schools was diminished in any way? Further to the point raised by Michelle McIlveen, I am interested in the comments in your submission about explicit legal recognition in other jurisdictions with respect to the critical link between employment and ethos. Do you believe that the ethos of Roman Catholic schools was diminished in any way, because that brings us back to the fundamental issue with which we started — employment fears? Last Thursday in Dungannon, the Cardinal publicly stated his concerns about preserving the ethos of schools.

2554. Sister Woulf: I think you are talking about a question of principle. The Scottish model has worked well.

2555. The Chairperson: That is something that we would be interested to see.

2556. Sister Woulf: I have here ‘Religion, Education & the Law: A Comparative Approach’, which some of you might find interesting.

2557. The Chairperson: I shall delegate Nelson McCausland to read that and report back next week. [Laughter.]

2558. Finally, Cardinal Brady said something about which I wish to ask a question. I apologise to the other witnesses about the way that the session has run on; however, it is vital that we have this discussion. In the Cardinal’s opening remarks, he said that clause 3 is unacceptable. If we were not able to convince the Department and the Minister to make changes that could satisfy the concerns that have been raised today and those that were raised with us last week by the GBA, what would the effect be? It might be difficult to answer that, but given that you said that clause 3 was unacceptable —

2559. Dr Brady: It is unacceptable in its present form.

2560. The Chairperson: Yes.

2561. Dr Brady: Today’s meeting gives us cause for hope that by having genuine listening, as you said, and a profitable and fruitful exchange of views, we will arrive at a situation in which the legislation is acceptable. That is the point of the exercise, but we will cross that bridge when we come to it.

2562. The Chairperson: I thank you and your delegation, Cardinal. You are welcome to stay while we hear from the representatives of the Council for Catholic Maintained Schools (CCMS).

2563. Dr Brady: I thank you and the Committee for listening genuinely.

2564. The Chairperson: If members agree, I propose that, because of time constraints, we postpone the presentation from the departmental officials, if they will be kind enough to accede to that request. It is not that I am putting them in the sin bin — I am very conscious of that. We are also due to have a very important presentation from the Education and Training Inspectorate.

2565. Mr O’Dowd: I am conscious that the media are interested in the Department’s presentation. Is it possible, if the officials’ attendance is to be postponed, to make the relevant documents public?

2566. The Chairperson: I meant to say to the Cardinal’s delegation before they left the table that we have a departmental response to their submission and that we will make that available to both delegations and the press, because it is now in the public domain. Are members content with course of action?

Members indicated assent.

2567. The Chairperson: I apologise to the departmental officials about that. I welcome Bishop McAreavey, Mr Donal Flanagan and his team. We are looking forward to a soft touch from the Council for Catholic Maintained Schools (CCMS). You have been at the centre of some jesting this morning, but I hope that it was all taken in good humour. There is a great deal of commonality on many of the issues that have been raised. I ask you to make your presentation, after which members will have an opportunity to ask questions.

2568. Most Reverend John McAreavey, Bishop of Dromore (Council for Catholic Maintained Schools): Thank you, Chairperson. We appreciate having the opportunity to address the Committee, and we hope that we will be able to bring some clarity to the issues that have already been discussed this morning.

2569. I will introduce the members of our delegation. Mr Donal Flanagan is the chief executive of CCMS; Mr Jim Clarke is the deputy chief executive, and Ms La’Verne Montgomery is the head of human resources and corporate services.

2570. It is the case that we are in broad agreement with the views expressed by the trustees, both in their written submission and oral evidence. The views of the CCMS come from more direct hands-on experience than that of bishops or trustees, who, in the nature of things, are a little bit more removed from the classroom and day-to-day administration of schools. It is from that experience that our contribution will be made.

2571. My colleagues, as you probably know, or will discover, are well able to speak for themselves. Whether they take a gentle touch or not, as a trustee and chair of the council of the CCMS, I think that they have acted over the years as they believed necessary and appropriate. By and large, that has been through influence and in trying to be supportive.

2572. Of course, as with any organisation, there were times and situations in which fairly decisive action was judged necessary. History will show that such actions were taken for the benefit of schools, teachers and pupils. I will hand over to Jim Clarke, who will make the main presentation.

2573. Mr Jim Clarke (Council for Catholic Maintained Schools): As a regional body, the CCMS agrees with the RPA proposals and agrees that they have the potential to deliver a more coherent and efficient support and administrative framework for education. However, centralised administration should not mean centralised control.

2574. The Bill is incomplete and lacks clarity. Those facts make it difficult for the CCMS to develop a full understanding of the intentions and implications at this time. At present, we do not have sight of the second Bill. Therefore, proposals on matters such as accountable autonomy, area-based planning and governance are not available to us. Members will have noted from the previous conversation that much of the debate is about how accountable autonomy will look and how it will operate.

2575. Furthermore, we are confused about the Bill’s lack of clarity on employment, the selection of community governors and the roles and responsibilities of sectoral support bodies. The CCMS believes that the purpose of schools should be to provide a high-quality education in which parents and pupils can have confidence. It should be an education system that is clearly linked to Northern Ireland’s emerging economy and changing society. In order to ensure that that happens, all sectors should have access to the range of supports that they need, bearing in mind — as Mr Poots might remind us — the costs.

2576. I will focus on three main areas: the need for clarity on the roles of the education and skills authority and boards of governors in the employment of teachers; the importance of the need for clarity on the roles and responsibilities of sectoral support bodies, and their relationship to the ESA and schools’ boards of governors; and, the critical area of raising standards. We are happy to answer questions on other aspects of our evidence.

2577. The first issue is the role of the ESA and boards of governors in the employment of teachers. The council is anxious to secure that there is clarity in the legislation and associated guidance in order to ensure equality, whereby each sector must provide schools that reflect parents’ desire for a particular educational ethos — be it Catholic, other faith-based, integrated, secular or Irish-medium. At present, there is confusion in the language of the Bill. References to the “employing authority" or “employer" seem to relate only to ESA’s role. Indeed, those terms are almost interchangeable in the Bill.

2578. There is no clear statement on the roles that will be discharged by boards of governors, and there is no umbrella terminology to describe what those roles might be. That omission is exacerbated by the lack of detail on the meaning of accountable autonomy and on how that concept will function. It is important that schools appoint teachers — particularly leaders — who have a commitment to the ethos regardless of their own background, in order to achieve and maintain high standards.

2579. Boards of governors must have significant influence over the appointment and management of staff. We have been told that the ESA will be the de jure employer or employing authority whereas boards of governors will be the de facto employer on all practical matters. Those roles must be clarified and confirmed in legislation or in guidance.

2580. The CCMS regards accountable autonomy as a significant opportunity for all schools to have the potential to access a more extensive range of responsibilities than those that are available under the current voluntary principle. However, that voluntary principle is not available to all schools. We believe that schools should have the potential to aspire to, or earn, that greater level of autonomy, and accountability aspects must be reflected in that. It should empower with a view to, primarily, raising standards rather than constraining, but we need detail on how that issue might operate.

2581. It is important that there is equality in the proposals. The CCMS believes that the Catholic sector and the controlled sector should have the same legal protections that are available to the integrated and Irish-medium sectors, as was suggested in the outcomes of the working group on establishing a culture of tolerance. The Catholic sector is not asking for anything that should not be available to other sectors.

2582. CCMS believes that all sectors should have access to a support body with a range of functions that are consistent with the needs and responsibilities of the sector. In the case of the Catholic sector, those are well outlined in policy paper 21, with the exception of the role of raising standards, which I will refer to later. Those responsibilities, in addition to the role of raising standards, include: developing ethos; an advocacy role on behalf of the sector; clarity on the role of school owners in the planning and provision of schools under an area-based planning process, managed, after the second Bill has been implemented, by the ESA acting as a neutral body; and the supporting of schools and the appointment of teachers, particularly at leadership levels.

2583. All those functions are based on ensuring the effectiveness of every school in the sector, imbued by the ethos of that sector, recognised in the schemes of management and employment. The experience of the CCMS has been that ethos adds value, and improvement in the sector appears to support that position. We believe that sectoral support is valuable, it should be available to every sector, and its functions and relationships should be explicit in the Bill. The sectoral support body exists to assist schools. The Catholic sector also wishes that all of its schools be recognised as Catholic, grant-aided schools. That issue will be addressed in the second Bill.

2584. The final issue is that of raising standards. Every child is entitled to a high quality education at a good school. Raising standards needs to be an explicit role of the ESA, the sectoral body and the individual school. However, only the schools can deliver directly on the raising of standards. Clause 34 of the Bill needs to include reference to the sectoral support body as well as to the ESA in respect of raising standards and to clarify the respective roles and relationships of each of those bodies on the important issue of raising standards.

2585. The CCMS was created primarily because trustees and Government had concerns about standards. We know that standards have improved, and it is important to analyse how that came about. Some of the characteristics of that change include: the importance of an agreed and shared ethos; the value of employing people committed to that ethos; the value of the ethos in addressing underperformance and aspiring to high standards, and the importance of support which understands and promotes the ethos. The experience of the CCMS should give confidence to other sectors that, with the proper conditions in place, standards can be raised.

2586. CCMS will be gone, but it wants the new arrangements to work effectively. To ensure that they do, there must be: an understanding of the objectives of the proposed changes, particularly with respect to improving educational outcomes; an acceptance of the diversities of pluralist society and of the need to provide for those equally; a recognition of the importance of ethos and the added value that it brings to each sector; a clarity in legislation and guidance on the roles of boards of governors in the employment of teachers and the nature and functioning of accountable autonomy; and a recognition of the role of school owners in the framing of schemes of management and employment, the selection of community governors committed to the ethos of the school and the planning and provision of schools.

2587. Governance arrangements should be effective and competent to do the job and be free from politicisation. Thank you, Chairperson.

2588. The Chairperson: We always seem to return to either clause 8 or clause 3, which are fundamental to those concerned. With respect to the point I made earlier to the commission delegation on clause 8, if there were to be built in some appeal or regulation of control, do you think it would go any way towards addressing concerns over employment schemes and schemes of management?

2589. Mr Donal Flanagan (Chief Executive, Council for Catholic Maintained Schools): When this exercise started, our first meeting was with Angela Smith and we explained the issues to her. She said that it was not beyond the wit of man to create a difference between an employing authority as employers de jure and a board of governors as employers de facto. Jim has said that there is not enough clarity in the legislation in relation to the role of boards of governors. If that role were clarified, we might make some progress.

2590. The legislation contains a requirement for the ESA to approve the scheme of management and the scheme of employment. That is not a difficulty. To create a difference between the employer and the employing authority, we can give the ESA a statutory role to support the board of governors in the exercise of its function as employer.

2591. That would provide a degree of consistency and accountability throughout the system; that is what I call a “light touch". In other words, the ESA would not have to control it, but it could advise on how it works. If people followed that advice, they will not get into trouble; if people wilfully ignore that advice, they should not be indemnified. There is an opportunity to create a difference between an employing authority and an employer de jure.

2592. The Chairperson: Are you aware of any examples of similar practices that could be used in the education sector?

2593. Mr Flanagan: The closest to it is the example that exists in the CCMS; we are the lead employer, but we do not exercise that with a heavy hand. Boards of governors are responsible for the employment of teachers, and they exercise that role by using advice that is given to them by the CCMS. We have seldom inhibited a board of governors from exercising its will; we have done so only when people were acting in a silly manner.

2594. With a minor extension to the CCMS’s role, we could create what the voluntary grammar, the Catholic maintained, the integrated and Irish-medium and, I expect, many in the controlled sector have and want in future.

2595. Ms La’Verne Montgomery (Council for Catholic Maintained Schools): Schedules 7 and 8 are minor amendments to current legislation, including the removal of schedule 2 of the Education (Northern Ireland) Order 1998. That relates to the staff of controlled and Catholic maintained schools with delegated budgets and covers discipline and grievance under a board of governors control, the right to suspend employees and provisions in relation to dismissals. We presume that those functions will be provided for elsewhere; as yet, however, they are not, and that is our concern. The omission may imply a change in the authority of boards of governors in respect of discipline, grievance and dismissal. In effect, that would remove those employer functions from boards of governors and, presumably, pass them to the ESA. There is a need to clarify those points, generally and particularly, in relation to any model in a scheme of management or scheme of employment.

2596. The Chairperson: That is helpful in view of the concern that exists about the revisions of employment schemes. I am sure that the thought will send shudders through the maintained sector, but if I were a teacher in a maintained school and was dismissed, against whom would I take a grievance? Would I take it against the CCMS or the Department? That will provide clarity on concerns that are being raised all the time. If the CCMS is the employer — as is the case at present — but the Department has responsibilities, on whose door would I knock if I wanted to take someone to court and get my compensation?

2597. Mr Flanagan: If you were appointed as a teacher in a CCMS school, you would be a good teacher, and the likelihood of your being dismissed would be slim. However, if you were dismissed for doing something that was not correct, your representation would be against the CCMS.

2598. Ms Montgomery: It would be against the board of governors in the first instance; the CCMS would be co-joined.

2599. The Chairperson: How would that change if the CCMS functions were transferred to the ESA? That is the nub of the matter.

2600. Mr Flanagan: The difference is that we do not know how the ESA will exercise its employing authority; there is no clarity on the role of boards of governors. We have clarity, evidence of good practice, and evidence of delegating considerable amounts of autonomy to local level.

2601. We have heard about accountable autonomy, but we have not seen it; we do not know how it will work, and it has never been described to me in any discussion with anyone.

2602. The Chairperson: Trevor said that, from his observation, he can see no problem. However, clause 3 states that:

“All teachers and other persons who are appointed to work under a contract of employment on the staff of a grant-aided school shall be employed by ESA."

2603. Therefore if I were employed by the ESA and a problem arose — taking La’Verne’s comments about clause 7 into account — I would knock on the door of the ESA. I would not take a board of governors to court; I would take the ESA to court.

2604. Mr Flanagan: The ESA will be a statutory body whose make-up will be largely political. Equally, we can work on the basis that the make-up of that statutory body will not necessarily support any one sector or be committed to any one ethos. The CCMS has been appointed as a statutory body to support the maintenance and standards of Catholic maintained schools, so there are people in that organisation who are sensitive and committed to working towards the promotion of the Catholic ethos. They are not all from the Catholic denomination.

2605. The difficulty is that we do not know how the ESA will interpret its role as the employing authority; if the ESA were given that authority, it would be a matter for it to interpret. There is no clarity on how it might wish to do that. That is our concern and our fear.

2606. The ESA is not necessarily a problem, but the ESA operating in a neutral manner would be a problem.

2607. Mr J Clarke: The issue is one of clarity — and clause 3 lacks clarity. Its title is:

“ESA to employ all staff of grant-aided schools"

2608. and it also refers to the ESA as the employer. It may not be legally correct, but, in common parlance, the roles that boards of governors play in the Catholic maintained sector is that of employer while the CCMS is the employing authority. If the ESA were both employing authority and employer, what will the role of boards of governors be and how will that be affected by the operation of accountable autonomy? Accountable autonomy is an important driver in raising standards. We want boards of governors to show the qualities, enthusiasm and commitment to take authority because they want to do better for their schools.

2609. The Chairperson: That is useful, but I have a query. You raised concerns, as I did earlier, about community governors, will you expand on those concerns? In paragraph 6.2 of your submission you refer to persons living and working in the local community and state that:

“Council believes it may be worth questioning if this is still a realistic understanding".

2610. Mr Flanagan: There are two issues. One is the process of selection, to which Bishop Walsh referred this morning. That should be done “in consultation with", and despite what Nelson may have seen or heard at the Belfast board, that list of names was produced after a great deal of preparation and discussion with the relevant officers from both bodies; those names were selected “in consultation with". That is an issue about process. If the ESA appoints people “in consultation with", I do not see any concerns for the future.

2611. Commitment is an issue. A community governor would have to be sensitive to, comfortable with, and committed to the promotion of the Catholic ethos in a Catholic school. It would be a very disruptive board of governors if individuals disagreed openly about something that is so important to the running of a school.

2612. The Chairperson: Ethos is not included in the definition of “community"; the Bill refers to someone living and working in the local community. Are we clear about what is meant by “community"?

2613. People have different interpretations and definitions of community. Do you not see that that could cause problems?

2614. Mr J Clarke: In our submission we asked for clarity on that matter because of the differing circumstances of our schools — about one third of our schools are now recognised as extended schools. We see education linked to other public services, particularly health and social services and community development. Those issues should be reflected in schools to recognise an area’s circumstances. Strategies and people should be in place who understand how relationships and links can be developed to enhance education generally and the community in particular.

2615. Mr O’Dowd: Bishop McAreavey, you and your colleagues are very welcome. Today’s debate has revolved around the role of boards of governors, the employing authority and the employment rights of boards of governors. Donal, you said that the employing authority is the CCMS. If it came to your attention as the employing authority that the employment practices of a board of governors were outside the law, would you act?

2616. Mr Flanagan: Yes.

2617. Mr O’Dowd: Why, then, would you not expect the ESA to act in future if it came to its attention that a board of governors was acting outside the law?

2618. Mr Flanagan: If the ESA were the employing authority, I would expect it to act. If it were the body that provided statutory advice to schools, it would have to ask the board of governors to account for the breach of statutory advice but not necessarily employment law. There is a slight difference. Either way, however, intervention is needed when people act inappropriately or in a wilful manner.

(The Deputy Chairperson
[Mr D Bradley] in the Chair)

2619. Mr O’Dowd: There was a wee bit of noise, so I am not sure whether we are contradicting each other. Are we?

2620. Mr Flanagan: No. We started this process with a discussion about the employing authority and the employer; at that stage, the Minister said that it was not beyond the wit of man to have clear blue water between them. If the role of governors was clarified and determined, we would be having a slightly different argument about the interface between the ESA as the employing authority and the board of governors as the employer. We do not have that clarity and division between the two. In the absence of that, it is better for the board of governors to be the employer than it would be for the ESA.

2621. Mr O’Dowd: Under your proposals, there would be several hundred employing authorities rather than one, because each board of governors would be an employing authority. That would be a logistical nightmare.

2622. I would like to ask about representation at a tribunal or in a court of law in relation to employment matters. I understand that the CCMS carries out the ethos, which is fair enough. However, a barrister before a tribunal — regardless of their ethos — advocates the law and defends a case based on law, not on ethos: no legal defence can be based on ethos.

2623. Mr Flanagan: There are two issues. One is about the plethora of schools that we would have, but we have that at the minute: there are 1,300 schools and 1,300 boards of governors. Many of them do extremely good jobs in raising standards and in ensuring and supporting the welfare of children, so why not take the next step and give them responsibility for the employing authority role? Advice and support would be available to them from the ESA.

2624. You must remember that this process was about mopping up and tying up administration, not changing the system.

2625. Mr O’Dowd: I disagree.

2626. Mr Flanagan: The review of public administration (RPA) came about to reduce the amount of administration in education — not necessarily to threaten anybody or to get rid of anything that was good but to provide a more coherent and efficient way of working. We can do that, and the CCMS has demonstrated — through its practice over the past 20 years — that it is capable of handing more responsibilities to boards of governors.

2627. It is not the Assembly, the Education Committee, the Department of Education, Donal Flanagan or anybody else who raises standards: schools raise standards; and unless you bring decision making down to that level, whether with finance or the employment of staff, you will not raise standards. Some schools are extremely good at exercising that degree of autonomy, and many others are capable of it, and some schools would need more support than others. However, the ESA, which will have a statutory duty to provide advice and guidance on a range of issues, will have the authority to intervene.

2628. I may give the impression of having something other than a light touch; however, I do not have the authority to go into a school or to direct anybody to do anything. I use influence, advice and guidance. By exercising their responsibilities based on that advice and guidance, boards of governors have demonstrated that they do not act wilfully; therefore, I can indemnify and defend them in any court of law. As La‘Verne said, when a barrister joins us on a particular case, he co-joins the board of governors and the CCMS. That is what would happen in relation to the ESA.

2629. Mr O’Dowd: Yes; but a barrister defends you on the basis of the law, not on the basis of an ethos. I admire the work of the CCMS; however, why does it never delegate employment authority to the boards of governors?

2630. Mr Flanagan: It is not within the legislation for us to do that.

2631. Mr O’Dowd: I do not remember it being lobbied for either. [Laughter.]

2632. Mr Flanagan: We have argued for it. We embraced the review of public administration because it would allow us to go to the next stage and delegate responsibility to the boards of governors. We have talked about the strength of governors and how they are selected, and we firmly believe that good schools have good governors. If you pick good governors who can manage properly, you will have a good school. Therefore give governors more power and responsibility to allow them to do their job.

2633. The Deputy Chairperson: You talked about delegation, which brings us back to the question of autonomy. We have three different forms of terminology: maximised autonomy; maximised supported autonomy; and accountable autonomy. Are we talking about the same thing?

2634. Mr J Clarke: I hope so. As you say, the language has changed. I reiterate my earlier point: what we need is clarity so that we know precisely what we mean when we talk about the employing authority role of the ESA, the role that boards of governors will have as employers, and the role that, over time, might be devolved to boards of governors, depending on the desire and capability of a board. If you encourage people to take responsibility and make them accountable, they will do a better job. In answer to John’s question, had accountable autonomy — in whatever terminology — been around, several boards of governors and several clusters of schools in the maintained sector could have operated a devolved model. We would like to encourage that.

2635. The Deputy Chairperson: Donal is right. We talked about the ESA being a major part of the RPA and the streamlining of administration, and we were told that savings of £20 million would be directed into front-line services. That is now in doubt. As Mrs Bradley said, the Department’s emphasis has changed and is now on raising standards, which was the CCMS’s raison d’être when it started out. You have been successful in that and you suggest that the sectoral body that replaces you should continue to have a role in raising standards. Presumably the ESA will retain its role in raising standards. What degree and what form of co-operation will work between a sectoral body with some responsibility for raising standards and the ESA?

2636. Mr J Clarke: That requires clarity. The ESA is the body responsible for raising standards generally through its support and challenge functions. The challenge function has not been played, except by the CCMS; we played it with a light touch and largely outside any legislative role that we have had. However, we have done that because, under our ethos, every child is entitled to a good education. When we face difficulties, we have, metaphorically, wrapped the arms of that ethos around the situation and told people that they have a responsibility to the children in their care. We do not think that that will change.

2637. I do not want to introduce differentials, but the education and library boards have said that it is not their role to challenge; however, we believe that it is everyone’s role to challenge and that that is implicit in raising standards. If there has been a differential, the CCMS has challenged schools, and we have used that challenge role to try and raise standards. Some other sectors might not have done that.

2638. It must be asked whether the neutral position or that of influence based on ethos has been more successful. Every sector should have that backup, and the ESA should be able to call on backup from a sectoral support body to support it in finding a way into a school or board of governors that a neutral external body simply might not be able to do. That is good for value for money if it achieves better outcomes for children and for education services.

2639. Mr Flanagan: Earlier, we talked about having good governors in schools. If, for example, the problem at a school is the governors, the sectoral support body can have huge influence through the trustees’ nominations, through the ESA’s nomination or through community nominations to begin to change a board of governors. We have effected such change on a number of occasions in the past 20 years. We have moved people out of boards of governors and put new people on boards midstream. That is one of the great advantages that a sectoral support body has, because it will have the ear of the body of the trustees who have the ownership role at schools.

(The Chairperson [Mr Storey] in the Chair)

2640. Mr McCausland: The CCMS is a statutory body. How is its membership constituted?

2641. Mr Flanagan: It is a constituted body of 36 members, 20 of whom are nominated by the trustees. Of those 20, 10 are directly nominated by the trustees and the remaining 10 are selected from people who have a contribution to make to education — academics, heads of institutions, business people, former assistant secretaries at the Department of Education or prominent people in the Protestant community.

2642. The Department of Education selects eight people by public advertisement. Four parent governors are selected on the basis that they are selected at local level — one cannot be a parent governor on the CCMS if one has not been selected at local level. A list of names is submitted from each of the dioceses. Similarly, people elected as teacher representatives in their own schools can come forward for selection to the CCMS.

2643. Mr McCausland: Therefore, 20 appointments come through the trustees, eight come through the Department, four are parents and four are teachers.

2644. Mr Flanagan: That is correct.

2645. Mr McCausland: Earlier, a question was asked about the boards of governors at Catholic-maintained schools. How many people from the Protestant community are on boards of governors in schools in Northern Ireland?

2646. Mr Flanagan: As you might expect, I do not have that information; nor do we gather it. We have anecdotal evidence. For instance, a school, which I cannot name, had lots of difficulties, and, as part of our intervention strategy, we created space — for want of a better word — on the board of governors. I went to a person who was not from the Catholic denomination but who has tremendous educational credibility. He went on to that board of governors and his influence was fundamental to making differences to the school. I have done that on a number of occasions. I select people on the basis that they are able to do a particular job.

2647. Equally, there are Catholic schools in which a significant number of children from other denominations are present, and people of those denominations have opportunities, through parental representation, to be members of that board of governors. I cannot give any exact detail, but I can say that through departmental representation, education and library board representation, trustee representation and parent representation, a significant number of people from other denominations sit on the boards of governors of Catholic schools.

2648. Mr McCausland: I appreciate that you do not have exact figures, but most people would expect you to have some sense of the general picture: would it be 1%, 5%, 50%; what would be the overall figure?

2649. Mr Flanagan: I would say that it is less than 5%.

2650. Mr McCausland: Is it much less than 5% — less than 5% could be one in 1,000; or it might be 0·1% — can you estimate?

2651. Mr Flanagan: It is probably more than 1%, and less than 5%. I would need to do a lot of work and survey the boards of governors of all of our schools to answer that. However, there is no exclusion on people who are sensitive to and committed to the promotion of ethos. The acceptance of office allows people to say that they are committed to and will work within the policies of the Catholic school.

2652. Mr McCausland: I am asking this question because people in the Protestant community do not have a detailed understanding of the internal workings of the Catholic sector. Therefore, I do not wish to be in any way problematic, it is simply to get an understanding of the prevailing situation.

2653. Mrs O’Neill: You are obviously committed to equality of opportunity in the Catholic employment sector. One issue that you raised in your submission centres on maintaining ethos, which has been rehearsed many times today. In particular, you are seeking assurances about the Department’s powers — in clause 5(2) and clause 12 — as regards fair employment legislation; for example, whether it would have the power to make change. Any change to fair-employment legislation can only be taken forward through OFMDFM; it would not be in the remit of the Department of Education.

2654. The Department’s paper states that the provisions give it very limited powers to modify employment law to facilitate the operation of the employment arrangements in the Bill. It has suggested also that it is not aware of any need to modify employment law in that regard, and it has no plans to do so. Is that sufficient reassurance for you; or do you want to see something stronger?

2655. Ms Montgomery: That is very helpful. Obviously, it is not in the Bill as currently drafted. Our concern about the exemption is more to do with administration in relation to appointments. We have 500 appointments a year, and I can count the number of tribunals that would be lodged in one year on the fingers of one hand. We are concerned that if the exemption were removed, it may bring an influx of tribunals, not necessarily on merit — that is a reality of life.

2656. Our position is that we advocate very strongly the retention of the exemption in relation to teacher appointments.

2657. Mr Lunn: I wanted to make the same point. I am perfectly happy with the response, so I will not trouble you with a question.

2658. Mr D Bradley: Are there teachers employed in Catholic schools who do not subscribe to the Catholic faith; who are not Catholics?

2659. Mr Flanagan: Yes.

2660. Ms Montgomery: We do not gather information on people’s religious denomination, but our understanding is that there are people who are not of the Catholic faith.

2661. Mr D Bradley: Are those people in leadership roles as well as in classrooms?

2662. Mr J Clarke: Yes.

2663. Ms Montgomery: Again, that is anecdotal information as opposed to anything that we gather on a formal basis.

2664. The Chairperson: I thought that, given Donal’s recommendation earlier, I was going to be appointed.

2665. Mr Flanagan: I said only if you were good enough. [Laughter.]

2666. Mr McCausland: Does everyone who is appointed have to subscribe to promoting the ethos of the Catholic sector?

2667. Ms Montgomery: We have a Catholic vision, to which all of our schools have effectively signed up, and we make reference to that in our advertisements for appointments, both in the ‘Irish News’ and on our website. Any teacher who applies for a post in a Catholic-maintained school knows exactly what they are signing up to and what the school believes in.

2668. Mr McCausland: If someone were applying in response to an advertisement to be a member of the board of the CCMS, would they have to subscribe to the ethos?

2669. Ms Montgomery: That would be determined by the criteria that the Department of Education sets for governors.

2670. Mr J Clarke: Our point is not just about the Catholic ethos; it is also about the integrated ethos, the Irish-medium ethos and all others. If people commit to an ethos, they will bring value to it. Therefore, it is important to encourage people to understand an ethos so that they can commit to it.

2671. The Chairperson: Paragraph 9.3 of your submission states:

“Council would seek assurance on the standing of such bodies preferably through some formal recognitions in the Bill."

2672. Does that arise due to lack of clarity in the Department’s policy paper 21 or is it due to more fundamental concerns on the role of sectoral support bodies?

2673. Mr J Clarke: The function of policy paper 21 is to describe the main functions of sectoral support bodies; it does not say anything about their legal standing. At the beginning of the process, the given wisdom was that since the ESA would be the administrative arm of education, some of the functions that are currently with the CCMS and other bodies would be brought under the ESA’s influence. However, if sectoral support bodies are to play their role effectively and complement, rather than compete with, the ESA, their functions need to be clarified for themselves, boards of governors and the ESA. Commission members made the important point that there should be some mechanism whereby their voice is heard by boards of governors, especially on matters concerning the improvement of standards in schools.

2674. Mr Flanagan: Bishop Walsh said that if we have such a body, its role and connection with boards of governors should be clearly spelt out or it will begin to disappear.

2675. The Chairperson: I thank you all for taking the time to come to the Committee and endure the marathon that we have had this morning. The meeting has been useful and profitable. As there is a crossover between yourselves and the issues raised by the commission, I hope that you feel that you have had the opportunity to raise your concerns, both in your submission and in oral evidence. We will ensure that you get a copy of the Department’s response. If you have outstanding issues that you want to raise with us, we are quite happy to receive comments from the CCMS.

2676. Dr McAreavey: We appreciate that your task is a very difficult one, and we would be glad to help in any way we can.

25 March 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mr Trevor Lunn
Mr Nelson McCausland
Miss Michelle McIlveen
Mr John O’Dowd
Michelle O’Neill
Mr Edwin Poots

Witnesses:

Mr Chris Stewart
Ms Eve Stewart
Mr John McGrath

 

Department of Education

2677. The Chairperson: We now move on to the departmental representatives’ presentation. I ask John, Chris and Eve to base their presentation on their response to the issues that the union representatives have raised. We will then move to the issues that were raised by the NICCE and the CCMS at last week’s meeting. As members will recall, we were unable to get to that “rebuttal" due to time constraints. John, you are welcome once again; I hope that you did not have withdrawal symptoms having not been able to participate in last week’s session.

2678. Mr John McGrath (Department of Education): We were deeply disappointed about that.

2679. The Chairperson: I am sure that you were.

2680. Mr McGrath: We were drowning our sorrows all of last Wednesday. [Laughter.]

2681. The Chairperson: Was that not St Patrick’s Day? [Laughter.]

2682. Mr McGrath: Wednesday mornings would not be the same if we were not here.

2683. I propose to make some opening remarks about the evidence given by our trade union colleagues. Chris Stewart will follow that with detailed comments on the paper that we have submitted. We will adopt the same approach in the second session.

2684. I wish to provide clarification on some of the points that came up in this morning’s session and, particularly, in relation to Dominic’s questions. We have made it clear in recent months that the ESA’s primary, if not exclusive, objective is to raise standards. There is also an agenda to produce efficiencies through the centralisation of functions and the reduction of needless bureaucracy.

2685. The Minister has made the objective to raise overall standards and close the gap in standards very explicit, and she has cited particular problems in particular sectors. The main vehicle for achieving that objective will be built around the school improvement policy. That will come in the final version of ‘Every School a Good School’, which is expected to be published shortly. The literacy and numeracy strategy is also linked to the achievement of that objective.

2686. We see the ESA’s role as one of providing help, support and, where necessary, a challenge function. That challenge function will be relevant when there is evidence in the ETI reports that schools are underperforming or could do better. In conjunction with the Inspectorate, the ESA will be responsible for providing that challenge function. We see some of that role as being the same as the role played by the CCMS in the maintained sector in past years. The CCMS had a role in driving up standards in the Catholic-maintained sector, and the statistics for that period provide evidence of that.

2687. As I have said, there is an agenda to produce greater efficiencies. Through recent Assembly Questions, and in comments to the Committee, we have made it clear that there can be no guarantee that savings will automatically go to front line services, because we may well have to meet savings targets. However, if we may have savings targets of between 3% and 4% in the education budget and the ESA is a better vehicle by which to identify and secure those savings, that is still protecting front line services because, if the ESA does not make savings in back-office services, they will have to come out of front line services.

2688. An environment in which we have greater efficiency targets heightens the importance of that objective of the ESA; it does not reduce it, which was the implication of Dominic’s interpretation. It is still a major objective of the ESA to drive out savings. It may well be that a starker environment will be created, and that savings may have to be returned to the centre if some of the prognosis around the overall state of the Northern Ireland block comes to pass in the coming years. It is important to make that point.

2689. The need to drive out savings — particularly from support services — is of no lesser importance. If savings are not made in that area, and a levy of 3% to 3·5% is applied in the future, there will be no areas left from which to make those savings, except from front line services. Therefore, the issue is still about investing in front line services or, as far as possible, protecting front line services. I wanted to make remarks on savings and on standards before Chris deals with the specific details of our trade union colleagues’ evidence.

2690. Mr Chris Stewart (Department of Education): Thank you. First, we very much welcome the opportunity to respond to the points that our trade union colleagues have made. We also welcome the very detailed and thoughtful submissions that they have brought to the Committee: they have clearly invested a great deal of time and effort in closely studying the proposals.

2691. For once, I do not believe that there will be much rebuttal. It is clear from the papers and from the oral evidence given by the trade unions that there is a great deal that we agree on. I will not attempt to deal with all of the issues raised in the trade unions’ papers, but I will concentrate on the main ones. We will be happy to answer any questions, or expand on any of the issues raised.

2692. On the issue of the employment arrangements, the Department welcomes the support offered by trade union colleagues on the proposed role of the ESA as the employing authority for all staff in grant-aided schools. Clearly, there are some aspects of the proposed employment arrangements that we do not agree upon, and I will come to those later. However, we do welcome the overall support for the core arrangements.

2693. In relation to the membership of the ESA, the Minister has noted the views expressed by trade unions on the number and composition of the proposed membership, and the involvement of district councillors. Indeed, similar points have been expressed by Members in recent weeks, and the Minister wants to carefully consider all of those views. However, at present, the Minister remains of the view that a membership of 12 is sufficient for effective leadership and governance. The Minister also feels that the proposal for a majority of members to be district councillors is important to ensure local democratic accountability.

2694. Trade union colleagues have suggested that a proportion of the ESA membership should be reserved for trade union representatives. The present legislation and policy make it clear that membership of the ESA and appointment to that body will primarily be on the principle of merit. Trade union representatives can of course apply for appointment, but I draw the Committee’s attention to the provision in schedule 1, paragraph 5(5), of the Bill, which prevents a member of the ESA from also being an employee of the ESA. However that, in itself, does not prevent trade union representatives from applying for membership. All members will be appointed on the basis of their competence and experience rather than on the basis of any formal representative capacity.

2695. The Minister also notes that formally reserving a proportion of the membership for trade union representatives could give rise to a conflict of interest for those members in management and trade union matters.

2696. On the issue of employment schemes and the role of the submitting authority, a number of points were made in the written and oral presentations about the need for schemes and the administrative burden that those might represent for schools. Also addressed was whether there ought to be scope for schools to tailor those schemes, or whether a single scheme should be imposed on all schools.

2697. The Minister does not agree with the view of trade union colleagues that the requirement for schools to produce schemes is a bureaucratic burden. In fact, the Department views those schemes as an essential element of the employment arrangements in the Bill. The schemes will be in place to ensure that there is clarity on the respective roles and responsibilities of the ESA and boards of governors. In that, it is important to have those schemes in place, and they are in the best interest of education staff. The ESA will produce model schemes, which schools will be free to adopt if they wish to do so. In doing so, those schools can minimise the administrative burden that will be placed upon them.

2698. The responsibility for preparing and submitting schemes will be given to schools, which is in keeping with the policy aim of allowing schools to determine the degree of autonomy that they wish to have on employment matters. In recent weeks, members have heard the views of various stakeholders who have stressed the importance and value of an autonomous role for boards of governors. The Department’s agreement with that position is reflected in the employment arrangements contained in the Bill.

2699. The Minister has told the Committee that she is minded to propose an amendment to the definition of the submitting authority, the effect of which would be to define it, in all cases, as the owners and trustees of the school, but with an option to delegate that function to boards of governors if the owners so wish.

2700. The Minister agrees with the views of trade union colleagues that schools should be responsible for determining the professional development needs of their staff and the advice and support services required to support those needs. At the same time, however, it is important that the ESA has a clear statutory responsibility to ensure that those services are available to schools. That is addressed in clause 13 of the Bill. However, that clause is intentionally flexible in the way in which it has been drafted. It requires the ESA to “provide or secure the provision of" such services. The word “secure" provides for budgets to be delegated to schools, or groups of schools, to provide or procure professional development services themselves. Contrary to a suggestion from one union, the Minister sees little purpose in introducing a charging regime for instances in which the ESA provides such services directly to schools. The Department considers that the administration of a charging system would be a waste of resources.

2701. The Minister does not fully agree with the comments made by trade union colleagues on raising standards, particularly those on clause 34 of the Bill, which outlines the duty of the boards of governors. The Department considers it essential that there are clear responsibilities for raising standards throughout the education system, and the absence of such clarity is recognised as a significant weakness in the current arrangements. It is equally important to ensure that schools co-operate with the ESA in the discharge of its functions. The word “co-operate" was deliberately chosen for the legislation. It is a good description of the sort of relationship that we want, which is one that involves no aggressive challenge, but co-operation, support and challenge where necessary.

2702. The UTU expressed concern that the Bill does not cover early-years learning, nursery schools or special education. That concern illustrates the challenge for any reader in studying such a complex Bill. The Bill must be read alongside the existing legislation, and particular attention must be paid to the amending provisions in the schedules. I am happy to reassure UTU colleagues that their fears are unfounded. The Bill does, in fact, include provisions on early-years services in clause 2(2)(a), although they are not described as such; they are referred to as educational services, which is departmental shorthand.

2703. Equally, nursery schools fall within the definition of primary schools that already exists in the Education and Libraries (Northern Ireland) Order 1986, and that carries forward to the Education Bill. Schedule 7 to the Education Bill contains extensive amendments to the special educational needs and to the Special Educational Needs and Disability (Northern Ireland) Order 2005. The effect of those amendments is to transfer to the ESA all the functions and duties of education and library boards in relation to special education.

2704. The Minister recognises and agrees with the importance of consultation with, and participation by, trade unions on a range of matters. She will wish to consider further whether there is a need for specific legislation to underpin that.

2705. I turn now to faith-based education and to the specific definition of a Catholic-maintained school. In its submission, the UTU questioned the need for that definition in the legislation. The Department previously stated that the Minister views the definition as a temporary measure that will be removed from legislation, either in the first Bill, by amendment, or, failing that, in the second Bill.

2706. However, the Department does not fully agree with the comments of union colleagues on faith-based schools or the diversity of school types in the system. Parents and children have the right to choose to attend a Catholic school, or a school of another type, if they so wish. The Department’s aim, through the RPA, is to have a single system of administration to support a diversity of school types. It is not, and has never been, our aim to reduce the diversity of school types within the system.

2707. Finally, I shall address a point made by an important organisation that was not present today. The forum of nursery school teachers expressed concern about the lack of support and training for nursery school principals and staff. I am happy to reassure trade union colleagues that the duties in clause 13 relate to all grant-aided schools, including nursery schools. I shall pause at this point, and we are happy to take questions.

2708. The Chairperson: Thank you. I wish to follow up on a couple of matters. Given that the Minister is minded to propose an amendment whereby the submitting authority for schools would become the owners, or trustees, of those schools, and given the current arrangements for the controlled sector, in which no body has been established that might own schools within it, is there not a risk that maximised, accountable autonomy will be lost?

2709. Furthermore, when we were discussing the establishment of such a body, concerns were raised that it might be subject to paying VAT. At that time, we were told that we were within days or weeks of receiving a response on that matter from the Treasury. Since then, we have not heard tell of the response, so we do not know the current thinking on the subject. We are concerned that the matter seems to be in abeyance.

2710. Mr C Stewart: I am not aware of whether we have had a formal response from the Treasury, but I will certainly take the matter up with Department of Finance colleagues. Our view on the matter is clear. We wish to ensure that there will be a VAT exemption for any statutory authority involved in education, and we will forcibly convey that point to our Treasury colleagues.

2711. With regard to the first part of your question, it is certainly true that the principle of accountable autonomy would be seriously weakened, or damaged, if we were unable to apply it consistently, and on the basis of equality, to all school types. That is why it is important that we determine where the submitting authority responsibility should lie for controlled schools. In consultation paper 20, we suggested that that responsibility might be assigned to the controlled schools’ ownership body. Alternatively, due to that sector’s unique nature, it might be more appropriate to place the responsibility directly with boards of governors. We will wish to reflect on that idea and to carefully consider what has been said to us in response to the consultation, which is coming to an end.

2712. The Chairperson: In your written submission, you stated that the Minister does not accept that the preparation and operation of employment schemes and, presumably, their ease of management would be a bureaucratic burden. Public bodies that are subject to section 75 of the Northern Ireland Act 1998 are charged with preparing and submitting equality schemes, in light of model schemes of guidance. The guidance for section 75 duties runs to 153 pages. What assurances can you give boards of governors about the size of the bureaucratic task facing them?

2713. Mr C Stewart: The arrangements that we have proposed are sufficiently flexible for a board of governors to decide what priority, and how much effort and resource, it wishes to expend on developing a scheme. We will ensure that a range of model schemes are available for different types of schools, so that, wherever possible, a school will be able to lift a model scheme off the shelf and adopt it as it stands. If that is the case, the burden becomes vanishingly small.

2714. On the other hand, we have heard from a number of stakeholders — and this point was emphasised in last week’s evidence session — that some schools and sectors do not regard section 75 obligations as a burden: they regard as absolutely essential to the maintenance of their ethos that they have the opportunity to invest time and resources in designing their employment arrangements.

2715. The proposals in the Bill would allow for that. Therefore, no school will be compelled to expend effort and resources in developing an employment scheme if it does not want to, but the opportunity will be there for those schools that do.

2716. The Chairperson: You mentioned a number of models for the different school types. What differences would there be between the models for the different school sectors? As was said earlier, we are trying to get a more unified approach to the employment of staff in our 1,200 schools.

2717. Mr C Stewart: The differences may be less than some people fear, and there is strong agreement on that between us and our trade union colleagues. We have made it clear that every employment scheme must comply with education employment law. We will also expect every employment scheme to reflect best practice on employment matters. Best practice is best practice, so we would not expect to see a significant variation on that between schemes from different schools or different sectors.

2718. There is perhaps scope to tailor schemes a little more precisely on issues of ethos. That remains to be seen, but I do not think that that will form the majority of a scheme’s content; it might be a small part of the scheme.

2719. Mr D Bradley: In regard to savings, Gavin Boyd told the Committee at a previous meeting that the £20 million in savings was over and above the education budget and that it was going directly to front-line services. The situation has changed. I accept the point that the money will now be used to protect front-line services, but it is not added icing on the cake as was suggested to us at the beginning.

2720. Mr McGrath: The savings in the current budget period have already been allocated to go back into front-line services. The conversations recently have been about future savings that the ESA will generate. We are simply making the point that we may not always be able to guarantee that those savings will go into front-line services instead of going against savings targets. In the current budget period, some of that £20 million has already been allocated to front-line services.

2721. Mr D Bradley: I take your point, but the scenario is different to the one with which we were first presented.

2722. The Committee received a letter from school principals that I quoted from at a previous meeting. At that meeting, I asked you what empirical evidence there is to suggest that the ESA would be successful in raising standards. You answered that the ESA will be based on the model of the CCMS, which was successful, so it logically followed the ESA would be successful.

2723. Mr McGrath: I do not think that we made it sound like an automatic process. There is an issue about standards, and we have enough evidence to say that there are issues that we need to tackle. The current structure does not give an even focus across the different sectors.

2724. To again reflect what trade union colleagues have said, the bulk of evidence shows that standards are improved by improving the quality of teaching. That is how the model that we are talking about facilitates an approach to professional development in which schools commission what they want instead of taking what they get. That is how standards will be improved.

2725. The issue is not just about the ESA per se; it is also about the approach to accountable autonomy, a better approach to professional development and an element of challenge when institutions are seen not to be performing as well as they should be and when the opportunities for kids are not what they should be.

2726. Mr D Bradley: OK. You heard the evidence from the representatives of the teachers’ unions, and they are clearly not happy with the proposed approach. They think that it is too closely founded on the English approach of constant inspection and placing principals under pressure. Moreover, they believe that the versions of ‘Every School a Good School’ that have been introduced to date contain, in my words, too much stick and not enough carrot. The Department, the teachers’ unions and the inspectorate need to agree on the best possible approach, based — as the union representative said — on a collegiate model, rather than on a model that could cause confrontation.

2727. Mr McGrath: I have no difficulty with that suggestion. My colleagues, particularly Katrina Godfrey, will have briefed the Committee on the specifics of the issue of standards and how ‘Every School a Good School’ will progress. I know that Katrina and her colleagues had considerable discussions with trade unions during the development of ‘Every School a Good School’.

2728. When we use words such as help, support and challenge, it is important that the concept of “challenge" is not automatically considered adversarial. If an inspectorate report shows that a school is at the bottom level of performance, no one will dispute that everyone in the system has a duty to address that issue. The challenge for the school and the wider system is how to improve performance. The approach does not necessarily have to be adversarial, but the ongoing level of performance must be challenged with a view to increasing it as much as possible.

2729. The ESA model should help and support all schools and should challenge schools in which performance levels could be better. In the future, some schools might, given their circumstances and resources, be deemed to be performing satisfactorily but could do better. That situation does not necessarily have to be approached in an adversarial way. Challenge should not be interpreted in that way. The approach should determine how to improve children’s prospects.

2730. Mr D Bradley: I did not interpret it in that way. However, based on the evidence from the teachers’ unions, there is potential for disagreement on the approach to raising standards. I am asking you to ensure that there is no disagreement and that all relevant parties are singing from the same hymn sheet. Such an approach will avoid a confrontational situation between the employers and the unions.

2731. Mr McGrath: I fully believe that there is a consensus among everyone on the need to raise standards.

2732. Mr D Bradley: I agree.

2733. Mr McGrath: We are talking about modalities, and I will relay members’ points — in particular, Dominic’s comments — to the officials who work more closely on the specifics of the standards agenda.

2734. Mr C Stewart: I may be able to offer more reassurance to trade union colleagues. In comparing the proposed approaches here with the approach in England and Wales, I draw the Committee’s attention — as we have done in the past couple of weeks — to the respective legislation. The School Standards and Framework Act 1998 outlines a range of significant intervention powers for local education authorities. Whether or not one thinks that the balance between carrots and sticks in the Education Bill is correct, it contains no new sticks. No new intervention powers are proposed for the ESA.

2735. Mr McCausland: Chris said earlier that — except for some references to ethos — schemes of employment will be more or less standard across all sectors. How will ethos feature in schemes of employment?

2736. Mr C Stewart: That is difficult to predict without hearing more about how the sectors want ethos to be reflected, but —

2737. Mr McCausland: Which sectors have raised that matter to date?

2738. Mr C Stewart: The Catholic education sector, the Irish-medium sector and, to a lesser extent, the integrated sector tend to raise that issue most often. The controlled sector’s interest is beginning to grow, and it is starting to recognise that it has the freedom to define an ethos for itself. Therefore, it needs to think about what its ethos might be, and how it might be reflected in everything from governance through to employment.

2739. To return to your question, one might expect a scheme of employment — for example, in a Catholic school — to make it clear that, in recruiting and selecting members of staff, part of the appointment procedure would be to test candidates on their knowledge and understanding of the ethos of Catholic education.

2740. Mr McCausland: Could you have a situation in which — across all sectors — you delete the word “Catholic" and put in a generic term that would apply to the appropriate sector?

2741. Mr C Stewart: It is quite possible that all sectors could start off in different places and eventually find themselves in similar positions. We have made the point to several sectors that we recognise and value their ethos and understand its importance to them. When one considers the strength of ethos in various sectors, they have much in common.

2742. Mr Lunn: The Minister said that she was not prepared formally to reserve a proportion of places on the board for trade union representatives because it could give rise to a conflict of interest. How does she square that with the presence of such representatives on education and library boards?

2743. Mr McGrath: The Minister did not establish the education and library boards, so she has no ownership of those governance arrangements. They predate her appointment. They are very large bodies, and bodies with that size of membership are few and far between in governance terms. Whereas in the past, it was possible to accommodate a representative model with 30 members or more, it is now difficult to accommodate that within the numbers discussed for the ESA and other public bodies.

2744. Mr C Stewart: My understanding of the legislation is that positions are not reserved for trade union representatives. There is a difference between a system that is open and allows people to take part and a system or set of arrangements that reserves places for particular organisations or stakeholders. The issue of conflict of interest is important. If I were a teacher, I would look to the trade union to represent my interests and not to sit on the management side of the table.

2745. Mr Lunn: If the trade unions want input at the top layer of the ESA, surely the conflict of interest issue could be dealt with. Such representation is made on lots of boards and organisations, and sometimes members simply have to exclude themselves from certain discussions. Conflict of interest should not preclude the trade unions from having proper input for most of the ESA’s business. The issue is probably academic anyway, because if the Minister sticks to a 12-person maximum for the board, seven of the members will be councillors.

2746. Mr C Stewart: The conflict of interest issue in that case would be extremely difficult. I can think of few aspects of the ESA’s business or affairs that would not touch on employment matters. Your first point is important. It is vital that there is an ongoing, effective working relationship between the ESA and trade union colleagues. Their input to the ESA’s business is extremely important. We would expect the ESA to pursue a social-partnership approach. We expect a productive, mature relationship between the ESA and trade union colleagues, with challenge where it is appropriate without confrontation.

2747. Mr Lunn: Michelle has kindly lent me her copy of the Department’s response. I wish that I had it in front of me earlier. I have not seen it until now. That is another example of a last-minute production from the Department. I have not received that paper yet.

2748. The Chairperson: They were given out yesterday when they were received, is that right?

2749. The Committee Clerk: Yes, by email, and hard copies were distributed.

2750. Mr Lunn: Some of us get up and come straight here and do not see our emails. It certainly has not come to me as a hard copy. That is a normal complaint; everything arrives at the last minute.

2751. The Chairperson: That was a rebuttal for the Department, and I hope that you will take that on board again.

2752. Mr McGrath: Right on the chin, Chairperson.

2753. Mrs O’Neill: Can you assure the unions that, under clause 10 as it stands, the ESA can employ a panel of teachers?

2754. Mr C Stewart: Yes, it could. The clause is sufficiently flexible and broad for the ESA to employ a panel of teachers in exactly the way that trade union colleagues have described. Whether they ought to and whether that represents the best use of resources is an issue that the Department and the ESA might want to consider, but the legislation does allow for it.

2755. Mr Poots: The UTU raised issues about the absence of focus on special needs and early-years provision. Will you respond to that?

2756. Mr C Stewart: Early years is covered in the legislation. We do not use the phrase “early years", because it is not a form of words that could easily be incorporated into legislation. The phrase we use is “educational services". The definition in the Bill is somewhat dry and wordy, but it is there specifically because there was a need, for the first time, to put the delivery of early-years services on a proper legislative footing. It is something that we have been doing on an extra-statutory basis up until now. However, we identified the need to put it on a proper legislative basis, and it is there.

2757. Mr Poots: Are you satisfied that it deals with nursery provision and so forth?

2758. Mr C Stewart: Nursery schools fall within the definition of primary schools. The definition of primary schools is in previous legalisation, and will continue in the Education Bill.

2759. Mr Poots: What about the private playgroups?

2760. Mr C Stewart: Those would come within early years.

2761. Mr Poots: They do not fall within primary schools?

2762. Mr C Stewart: No.

2763. The Chairperson: Is there any other aspect that falls under the definition of educational services other than early years? Is it all-encompassing? That is always the problem; if it is not specific, those who read it may miss that. However, if there is then a challenge, the Department is able to say that it is covered because they know that that aspect is included, but you are the only guardians of that knowledge.

2764. Mr C Stewart: Perhaps I should explain the process of how we got there. The drafting of that particular clause was long and difficult. Members will be aware that responsibility for a range of early-years services was transferred from the Department of Health, Social Services and Public Safety (DHSSPS) to the Department of Education some years ago. There was a clear need to do that, and we moved quickly to do so. The agreement was that we would put that on a sound legislative basis at the earliest possible opportunity.

2765. Perhaps naively, we thought that that would be a simple task, and that we would come up with a simple, clear definition of early-years services, which could be written into the Bill. When we looked more closely at what services are actually provided, they were extremely broad and diverse.

2766. The strength of that definition lies in the fact that those primarily non-statutory providers are continually coming up with new and good ideas of the types of services that ought to be delivered in and around communities. In order to accommodate that, we needed a very broad, flexible and all-encompassing definition, and one that we hope is sufficiently open to allow for the future development of services that are not currently delivered or perhaps not even currently envisaged. That is why it is written in that very broad formulation. Had we not done so, the difficulty would be that every time someone comes up with a new and good idea in early-years services, we would have to go back to primary legislation and stretch the definition yet again in order to encompass those ideas. That is why we have taken that particular approach. I cannot tell you exactly what might fall within that definition at this stage, because we have deliberately left it very open.

2767. Mr Poots: I remain to be convinced on that point. I feel that private playgroups will probably get a raw deal. They do not receive the same funding or support as others, and their being put into a large silo with others may not be in their long-term interests.

2768. I do not believe that the Minister’s notion of having 12 board members — a majority of which would be councillors — will work. That will result in there being a maximum of five educationalists on that board, and the ESA board requires a greater capacity. Furthermore, if the Department is going to go down the route of having subgroups and bringing in others from outside, it would be much better appointing a larger board and drawing the subgroups and the expertise from that board rather than externally.

2769. Mr C Stewart: That is a fair point. However, I emphasise that the Minister has not yet given her final answer on the size or composition of the board. She has not yet had an opportunity to come to a conclusion on the points that Committee members have raised, and she wants to do that before she indicates her formal position to the Committee.

2770. The Chairperson: Clause 13 has the heading:

“ESA to provide or secure provision of training and advisory and support services for schools".

2771. Clause 13(1) states that:

“It is the duty of ESA to provide or secure the provision of —

(a) such training, and

(b) such advisory and support services".

2772. A concern was raised by the unions that there is already a wealth of expertise within the education and library boards as they are currently constituted. Why is it that the ESA — in its interim and current forms — will be going outside the boards to secure and provide other services? Why is the ESA not seeking to use and utilise the excellent provision and services that already exist?

2773. Mr McGrath: I do not believe that the Bill is implying that. Chris’s point was that the legislation is framed so that the ESA does not necessarily have to be the direct provider, thus allowing flexibility in the future.

2774. There is considerable resource in the curriculum work that is carried out by the Regional Training Unit (RTU), the CCEA and CASS which needs to be brought together, thus harnessing those skills and expertise. The thinking behind that provision was to create a model that was much more responsive to what schools want or need. If that model is not in the form or shape of what schools want, the Department is rightly trying to make provision for the ESA to have the duty and the flexibility to create what schools, school principals and boards of governors need for professional development.

2775. There is a sense among many of the schools at the moment that a table d’hôte rather than an á la carte approach is being taken in relation to what is available for professional development. We said earlier that we see much more scope for schools telling us what they need and how they need it, and the ESA will then have the flexibility to respond to those requests. It will, undoubtedly, use much of the existing expertise and skills.

2776. The delivery model will be a much more of a responsive commissioning model by schools than a delivery model that emanates from the system. That is the theme, and it reflects many of the messages that the Department has picked up from schools. Those messages have also been reflected through some of the evidence that was given by our trade union colleagues.

2777. Mr C Stewart: That is exactly right. The point that the Department hears most frequently from stakeholders about CASS is that there are excellent people in that organisation who provide very good services, but that it is too inflexible and not sufficiently tailored to what the schools and staff within those schools determine their needs to be. Indeed, we heard those sentiments expressed again from trade union colleagues today.

2778. That is the reason for trying to introduce the flexibility; it is not that we see wholesale privatisation of provision. We see change through moving away from the ESA providing services and towards schools or groups of schools providing the services themselves. There are already seen some very good examples of groups of schools — particularly within learning communities — coming together, assessing their own professional development needs, carving out some resources and procuring or delivering those services in, and for, the schools. We believe that that model has a great deal of potential. We will tell the ESA that we expect it to look sympathetically and favourably on proposals from schools or groups of schools to develop professional-development approaches for themselves.

2779. Mr Lunn: The UTU made the point about the ESA’s duty to have regard to the requirements of industry, commerce and the professions. The union also believes that ESA should also have regard to its requirements. I assume that what the union means by that is that it is a necessary and important part of industry, commerce and the professions, and it wants its views to be considered as well. I am not sure whether it is the Minister’s response when the Department says that it is not clear about what the union means. I believe that what it means is reasonably clear. Is that simply Minister-speak for “no way"?

2780. Mr C Stewart: No, I do not believe so. Your explanation of it is helpful. Exactly what the union meant was not clear in its paper. It said that we need to amend the legislation to reflect unions’ needs. I was not quite sure what that meant. If it means that the clause ought to be interpreted as meaning that the teaching profession is an important one, and that its needs ought to be fairly central to the application of that clause, we fully support that. However, it was not clear from the wording in the paper exactly what it meant by having regard for trade unions’ needs.

2781. Mr Lunn: Is it becoming clearer now?

2782. Mr C Stewart: If trade-union colleagues agree with your helpful explanation, then I believe that it is.

2783. Mr Lunn: If trade-union colleagues were to write to you again to clarify that point, you could take it further.

2784. Mr C Stewart: That would be extremely helpful.

2785. Mr Lunn: In the meantime, however, it is not ruled out. You have said simply that it is not clear what the union meant.

2786. Mr C Stewart: That is correct.

2787. The Chairperson: On that point, I want to say, particularly to the trade-union delegation, that it will have a right to reply and respond to the Department’s paper, a copy of which we have given them. Therefore, if there are issues on which it still has concerns, we want to ensure — as we have done with others — that we try to address them. I am sure, Chris, that you are quite happy with that.

2788. Mr C Stewart: Absolutely, Chairman. Our door is never closed.

2789. The Chairperson: It takes a long time to open, but it is never closed. [Laughter.]

2790. The Minister has now indicated that she is minded to propose an amendment to the definition of a submitting authority. An issue surrounds the submitting authority’s being the trustees — people who own schools. Following from comments that were made last week, for example, by Bishop Walsh, given the fact that trustees currently appoint four members of a school’s board of governors, is it not, therefore, sufficient for the people who are on a school’s board of governors to be able to safeguard and guarantee the ethos of that school?

2791. Mr C Stewart: The Minister’s policy is that it is not sufficient and that arrangements ought to allow the owners or trustees of schools, not only to make appointments to boards of governors, but to set the governance and employment arrangements within which those governors will operate, or, at least, to ensure that ethos is properly reflected in those arrangements.

2792. The Chairperson: OK. We will now move on to your response to the issues that were raised by the CCMS and the Northern Ireland Commission for Catholic Education. Have you provided a paper for that?

2793. Mr McGrath: We provided a response last week that we did not get a chance to discuss.

2794. The Chairperson: Of course, you did provide that paper. I apologise.

2795. Mr McGrath: Chris will elaborate on some of the detail of the paper that we provided. Having listened to the comments that were made by the commission and the CCMS, we were struck by the similarity between a number of their key points and the Minister’s proposals.

2796. Strong emphasis was put on the need for a single education system, albeit one that reflects and recognises diversity. The Cardinal made specific points about the need for equality in education policy and provision. Support was expressed for shrinkage of administration and a focus on front line delivery. Bishop McKeown talked of the need to emphasise delegation to schools and the need for accountable autonomy.

2797. Discussion took place around establishing the appropriate balance between the role of the school and the wider role of the ESA as the single employing authority. As was evidenced earlier today, the role of the CCMS as the employing authority for teachers in Catholic-maintained schools has worked, and it is difficult to see how, with goodwill, the broader model proposed cannot or will not work in the future.

2798. The need for a flexible approach was recognised. Bishop Walsh cited the example that such an approach could deal with the problems of small schools that might well want to have a lot provided from the centre.

2799. As the NICCE, in particular, recognised, the Department has been engaged in a continuous process of dialogue with the Church, the trustees, the commission and all stakeholders in the legislation.

2800. The written and oral evidence shows that there is a perceived lack of clarity around some aspects of the single employing authority, and that has given rise to specific concerns on behalf of the NICCE, in particular. We would say that based on the single employing authority model that has been operating to date, namely the CCMS, those concerns can be laid to rest. The Minister is committed to continuing dialogue with the NICCE with a view to providing as much clarity as possible and, through that, to allay the concerns expressed by the commission and the CCMS last week.

2801. Mr C Stewart: Before I move on to the detail, I shall pick up on couple of the general points that John made. It is worth reminding ourselves that the RPA is the biggest reform of education in a generation. Therefore, it is not surprising that, from time to time, concerns and fears have arisen among a number of stakeholders. The Committee heard a number of those last week, and some more again today from trade union colleagues. As John said, throughout that process, we have and will continue to seek to address those concerns and to accommodate the views of stakeholders wherever we can. That is part of an open and transparent process.

2802. We recognise and value the diversity of the education system and of the various sectors and school types, each of which has a distinctive character and ethos. We recognise that every sector contributes to the success of our education system and that every sector faces the same challenges of raising standards.

2803. Every sector has a part to play in meeting the needs of children and young people. The RPA is based on that recognition. Our aim is for a modern, fit-for-purpose, value-for-money system of administration. We aim for a single system, but one supports a diversity of school types and offers the same opportunities to all on the basis of equality. We believe that the provisions in the Bill meet that aim. They threaten no school and no sector, but they offer an opportunity and a challenge to all to work in partnership for continued and greater success.

2804. The paper that we provided to the Committee seeks to comprehensively address all of the issues raised by the NICCE and the CCMS. I will not attempt to cover all of those now, but I will concentrate on the key themes of the commission’s evidence. We will, of course, be happy to pick up any other points during questions.

2805. The commission’s evidence posed three key questions or tests about the Education Bill. It asked about the rights of parents, the provision of the trustees to exercise their rights and duties, and the structures of support for each education sector.

2806. On the first of those, the commission emphasised the importance that it places on the rights of parents to have their children educated in a manner that is consistent with their religious and philosophical convictions. The Minister acknowledges that right and the need to ensure that it continues to be reflected in legislation. Again, the existing legislation must be looked at, as well as the Education Bill. Article 44 of the 1986 Order includes a provision on having regard to the principle that:

“pupils shall be educated in accordance with the wishes of their parents."

2807. The duty in that provision will apply both to the ESA and to the Department, and it will cover the exercising by the ESA of all of the powers and duties conferred, or imposed, on it by education legislation. Therefore, the Minister’s view is that the Education Bill does preserve the rights of parents, and fully addresses the Commission’s concerns.

2808. The second matter was the provision for trustees to exercise their rights and duties. A number of measures have been included in policy and legislation to ensure that the role of trustees to foster and develop the ethos of Catholic education is recognised, supported and, where appropriate, provided for in legislation. Specifically, there will be no change to the ownership of Catholic schools.

2809. The role of trustees will be underpinned in the legislation, and the submitting authorities will control the schemes of management and employment for Catholic schools and have consultation rights on matters that affect those schools, ranging from planning to the appointment of governors.

2810. Boards of governors will make key employment decisions, under the control and direction of the trustees and exercised through the schemes of employment. The ESA will be bound by the schemes of employment, and it will be under a legal duty to put into effect the lawful decisions of boards of governors. In addition, there will be no change to lawful criteria centred on ethos, such as the requirement for a certificate in religious education.

2811. Nothing in the Bill impedes the desire for greater coherence within the Catholic sector and, indeed, some provisions will assist it, such as bringing the administration arrangements for Catholic-grammar and Catholic-maintained schools closer together. Trustees will continue to have modest public funding for professional support for the discharge of their roles.

2812. In its evidence, the Commission referred to two matters under the heading: the connection between employment and ethos and exemptions from equality legislation. With respect to employment, the Commission suggested that individual boards of governors, rather then the ESA, should be the formal employers of staff. As John McGrath said, we do not fully understand why the Commission feels that only individual school employers can safeguard the ethos of Catholic schools. That strikes us as somewhat strange for three reasons.

2813. First, the fracturing of employment arrangements that that would involve seems to be at odds with the Commission’s declared aim of drawing Catholic schools closer together into a more coherent sector, particularly when, as at present, the vast majority of Catholic schools are already part of collective employment arrangements. Members will know that teachers in Catholic-maintained schools are employed by the CCMS and non-teaching staff are employed by the education and library boards. The RPA employment-model arrangements are, essentially, the CCMS model applied to all sectors, so we wonder why the commission is now arguing against those arrangements, which both it and the CCMS say are working well.

2814. Reiterating what John McGrath said, the commission said in its evidence to the Committee that small schools might struggle to discharge employment functions without a supporting authority being in place. The commission and the CCMS also acknowledged that the CCMS has an intervention role, albeit with a light touch, but one that it exercises from time to time.

2815. Secondly, irrespective of whether individual schools or the ESA employ staff, there would be no significant change to the responsibilities to be discharged by boards of governors, or to the requirement that all parties must act within education and employment law.

2816. Thirdly, the proposal from the commission strikes us as unnecessary, because, under RPA arrangements, only boards of governors, and not the ESA, can decide who will be appointed to the staff of any Catholic school — a point that was reiterated by trade union colleagues. Boards of governors must comply with schemes of management and employment that will be set by the trustees.

2817. The secondary issue raised under the heading was that of exemptions from equality legislation. In its written evidence, the commission suggested that religious schools should be exempt from the requirements of equality legislation. Members will be aware of the background to this matter, and they will know that, at the moment, the education system here is not covered by the full range of equality legislation. Schools are not public authorities for the purposes of section 75 of the Northern Ireland Act 1998, and the recruitment of teachers is outside the scope of the Fair Employment and Treatment (Northern Ireland) Order.

2818. Against that background, we would wish to comment on two aspects. First, the commission’s paper does not make a clear case for change, and we do not know what problem or difficulty the commission was seeking to address or which aspects of anti-discrimination or fair-employment legislation it felt ought to have been set aside.

2819. Secondly, with respect to the feasibility of the proposal, legal advice is required to determine whether the Assembly could take forward legislation such as that suggested by the commission. However, it is questionable whether such measures would be within the Assembly’s legislative competence as defined by section 6 of the Northern Ireland Act 1998.

2820. We welcome the apparent change in the commission’s position, which it outlined in its oral evidence. The commission stated that no further exemptions were sought, and we welcome that because we believe that there is no case for such exemptions to be sought.

2821. The Minister considers that the Education Bill recognises the rights and duties of trustees and makes effective provision for trustees to exercise those rights and duties. The Minister remains of the view that the employment arrangements contained in the Bill are the best option. Those arrangements will deliver significant benefits in relation to raising standards, professional development, workforce planning, consistency and equality and value for money. The arrangements also provide an autonomous role for boards of governors on an equitable basis across all sectors and effective ethos safeguards for owners and trustees.

2822. The third point concerns the structures of support for each education sector. Members will know that the Department is considering a number of education sectors’ business cases for public funding for sectoral support. Each business case will be assessed for value for money and against the policy criteria that are set out in policy paper 21, which the Committee considered previously. The commission suggested that the Education Bill should include references to the role of various sectoral organisations. However, the approach in paper 21 makes it clear that sectoral organisations will be non-statutory bodies and will not have any statutory functions. Therefore, we find it difficult to see a clear or appropriate rationale for making reference to sectoral organisations in legislation.

2823. The Minister also points out that legislation will contain sufficient duties, or other mechanisms, to ensure that there is effective consultation with education sectors. The education advisory forum will provide a formal statutory mechanism for the involvement of sectors and other stakeholders in policy formulation. That will be complemented by the existing specific duties to consult the trustees and others on a range of legislative matters and not just on development proposals for schools.

2824. In respect of the operational functions of the ESA on matters such as raising standards, the Minister considers that any formal duties to consult should refer to boards of governors and/or the owners or trustees of schools, rather than to sectoral bodies. The trustees may, of course, request a sectoral body to provide them with advice and support in relation to such consultations.

2825. The Minister considers that effective arrangements are being made for the support structures of each education sector. However, in keeping with the policy that is set out in paper 21, the Minister does not see a need for any new legislative provisions in relation to that matter. The commission set three key tests, or success criteria, for the Education Bill, and it is the Minister’s view that the Bill meets all three of those criteria for all sectors.

2826. The Chairperson: If that is the case, and the Minister feels that the Bill meets all three criteria and is sufficient for all sectors, is there not an anomaly or inequality? Perhaps you will explain the historical issue of why our schools are not all covered by the provisions of equality legislation. Nevertheless, if we go down this road, a non-departmental public body will be established for the controlled sector, to own its schools, and that body will be subject to section 75 of the Northern Ireland Act 1998. However, there will be another body, under the ownership of the trustees or the Catholic schools, which will not be a non-departmental public body and will not be subject to section 75. That is a glaring inequality, because you are not treating sectors equitably.

2827. The two main words that came out of last week’s meeting with the CCMS and the commission were trust and clarity. There is a lack of trust on the part of both the CCMS and the commission, and there is a lack of clarity among most people. How do we reach the situation in which people have clarity and equity?

2828. It will not be acceptable to have one sector that will be subject to all the equality scrutiny that is usually applied to a public body when other sectors are not.

2829. Mr C Stewart: There are a number of reasons why the existing range of equality legislation is not fully applied. A large part of the thinking concerning section 75 was the need to minimise or avoid additional bureaucratic burdens on schools. In the context of collective employment arrangements, the CCMS and the education and library boards would be subject to section 75. Therefore, there is no particular advantage in applying it a second time to individual schools.

2830. The issue around the Fair Employment and Treatment (Northern Ireland) Order 1998 is one of ethos. At the time of the Order’s inception, the Churches felt that there was a need to exclude teachers from its provisions to ensure that measures to protect an ethos could continue to be legitimately applied. The strongest views on that were expressed by the Protestant Churches, who felt that if the exemption were not granted, there was a danger of de facto inequality for Protestant teachers who would not enjoy the same range of employment opportunities as their Catholic counterparts.

2831. I understand your point about equity or equality between the ownership arrangements for Catholic schools and controlled schools. However, finding an answer that you would regard as satisfactory is difficult. Catholic schools are owned by the Catholic Church; an attempt to apply legislation that governs public authorities to a Church would be difficult. However, controlled schools will remain in the public sector and will be owned by some form of public authority — it would be an unusual and difficult approach not to apply the normal panoply of legislation to any public authority. Essentially, the difference is between public ownership and private ownership — between a public authority and a Church. Any attempt to subject both to exactly the same approach in legislation would be fraught with difficulty.

2832. Committee members and a number of stakeholders have emphasised the issue of clarity on a number of occasions, and we accept that. Our approach has been based on seeking to avoid excessive detail or excessive bureaucracy in legislation. We accept that that has given rise to concern about a lack of clarity. A potential approach is to move into legislation — probably subordinate legislation — a lot of the detail that we proposed to place in guidance, and that is something that the Minister will want to consider.

2833. Mr Poots: What will be the situation for voluntary grammar schools, which are currently owned by trustees?

2834. Mr C Stewart: There are no plans to change the ownership of those schools.

2835. The Chairperson: If boards of governors of Catholic schools decline to employ candidates for vacancies on the grounds of ethos, where is the reassurance for Catholic trustees that the ESA will fight such cases with the same commitment as the CCMS? I am talking about cases where there is a good and arguable case that the board of governors’ decision was lawful.

2836. Mr C Stewart: If the decision of a board of governors has been lawful and it has applied the correct procedures, we would expect the ESA to provide exactly the same backing and support as the CCMS currently does. The issue is that the law applies equally to all employers, both current and future, in the education sector. The suggestion that is made from time to time that the CCMS, or an individual school employer, has more leeway or opportunity to act differently should be challenged, because it is not accurate. The issue from our perspective, and from the perspective of the ESA in due course, is whether the law has been correctly applied; the school will be supported if it has, but the decision made by the board of governors would not be taken forward if it has not.

2837. The Chairperson: You could argue that those boards are able to do that because of the exemptions that exist. Therefore, the situation is not equitable.

2838. Mr C Stewart: The effect of the exemption is there, whether or not one agrees with it. It applies equally to every employer, current and future. It does not and cannot apply differentially between CCMS and the ESA or, between an individual school as an employer or a collective employer.

2839. Mr McCausland: I am interested in the appointment of governors and boards of governors. It is a big issue with the Catholic Church.

2840. I noticed in a newspaper recently that the Department was advertising for people to apply to register to serve on boards of governors. It was interesting that, on the form, the applicant could tick which box he or she wished to apply for: there was no provision for expression of preference. The categories were: “integrated", “Irish-medium", “Catholic management" and “other management". I thought it interesting that some sectors were specifically titled, while others were not. That could be extremely confusing for some people. I will return to that point.

2841. I am interested in the current composition of boards of governors and how, in practice, that works out. I understand the composition of boards of governors of controlled schools, but if you asked me about the composition of boards of governors in other sectors, I would have some difficulty describing it. Yesterday, I asked that question of officials at an education and library board: they had to go away and check the answer. Things tend to work in silos.

2842. Does the Department appoint some of the governors to Catholic schools, and, if so, how many does it appoint?

2843. Mr C Stewart: I find myself in the same position as the hapless official at the education and library board: I will have to run away to check. The sums are extremely complicated. Some of my colleagues may be able to advise me.

2844. Mr McCausland: It would be useful if you were to make up a little grid: I am sure that you could do it when you return to the office this afternoon. I started to make one yesterday, but I could not get all the answers. Your grid should list all the school categories, separating, for example, controlled primary from controlled integrated primary. Presumably, there are transfers from a controlled primary but not from a controlled integrated primary.

2845. Mr C Stewart: I would need to check that detail. We could certainly provide that.

2846. Mr McCausland: In the grid, all the school categories should be listed on one side, and all the different sources from which school governors are drawn should be listed on the other. Then we would know the current situation. It seemed to me yesterday, and your evidence this morning shows, that a lot of this discussion takes place in a general atmosphere of confusion and lack of clarity. That would be a useful exercise.

2847. How are the department-appointed governors for a Catholic school selected? Applicants fill in the form, asking that their names go forward. For example, I — or Mervyn, or someone else —decides to put his name forward to Michelle to be a governor of a school of a particular category.

2848. Mr C Stewart: We would be happy to take your application.

2849. Mr McCausland: I know that you would. [Laughter]. Suppose that the Church is reasonably satisfied with the arrangements and is content that the people coming forward are in full accord with the Catholic ethos. How does that work in the Department? How do you check that?

2850. Mr C Stewart: We check it through consultation. There is a legal requirement to consult.

2851. Mr McCausland: Who do you consult?

2852. Mr C Stewart: In the case of a Catholic grammar school, we consult the trustees or the existing board of governors. In the case of a Catholic-maintained school, the education and library board would carry out the consultation with the CCMS.

2853. Mr McCausland: Is the CCMS, or the particular order that owns the school, able to look down the list and determine who fits the criteria? How do they check that the candidate fits in with the Catholic ethos? How does it work? It is one of the mysteries of the universe.

2854. Mr C Stewart: It is: it is a mystery to me. You would have to ask them how they satisfy themselves about that.

2855. In practice, I am unsure whether there is the same need to check that in detail. In proposing the appointments, our colleagues in the Department and in the education and library boards take careful note of the preferences expressed by applicants on their forms. We try to, where possible, match applicants with the type of school or, in many cases, the particular school to which they want to be appointed. Applicants tend to self-select. They apply for a particular school or type of school because they have an interest in and an understanding of the ethos of that type of school.

2856. Mr McCausland: However, the application form does not contain the word “controlled" even though you are appointing governors for the next four years.

2857. Mr C Stewart: That is a symptom of a situation that arises in several aspects of education. We tend to use management-type or administrative arrangements as a proxy for ethos. It is not a particularly exact or helpful proxy.

2858. Mr McCausland: My perception — which I think is widespread — is that certain sectors are looked after whereas the others must take what they get. That is how most people perceive the situation, given that names of particular sectors are not included on forms. What happens if I want to apply to controlled primary school but I do not want to apply to a controlled-integrated primary school? I suppose that I could select “integrated schools" on the form. The word “controlled" does not appear on the form — that is incredible.

2859. Mr C Stewart: Every applicant can indicate — in any degree of detail — for which sectors they want to be considered.

2860. Mr McCausland: With respect, Chris, you cannot argue this point away. Controlled schools seem to be an afterthought with the Department at a stage when it is appointing governors for four years and after much debate about the ESA and the sector. If the Department cannot even manage to include the word “controlled" on the advertisement, what confidence could anybody have in the impartiality and inclusiveness of the Department’s approach? That is the problem.

2861. Mr C Stewart: I find myself in complete agreement with you. The form could be improved considerably by including specific references to school types and the ethos of schools rather than to their management type.

2862. Mr McCausland: Therefore, I am sure that if I visit the website tomorrow the form will have been changed.

2863. Mr McGrath: Chris has recognised — as I do — the merit of your points, which we will consider after the meeting. As was mentioned earlier, we need to do a much better job on the business of recruiting governors by explaining the role and by offering induction and training. Some of our materials are, perhaps, past their sell-by date.

2864. Mr McCausland: I was told that the deadline for applications is 20 May 2009. There is also an issue about how education and library boards appoint governors. The newspaper contains an advert for departmental appointees. Will there be an advert for governors that are appointed by education and library boards? Are they required to advertise? I was told yesterday that the answer is probably not. How those governors emerge seems to be another mystery of the universe.

2865. The Department will appoint those governors for four years, and, therefore, they will serve during three years of the ESA. They will, potentially, have a larger role in the future. It is clear that, in certain sectors, the ethos of governors fits in with the ethos of the school. However, once again, the controlled sector is at a serious disadvantage, even though it accommodates almost half of the children. Could we have the grid in the next day or so?

2866. Mr McGrath: I am reliably informed that such a grid exists in the Department. We can obtain that for the Committee as soon as possible.

2867. Mr McCausland: Will you email it to members?

2868. Mr McGrath: We should be able to.

2869. Mr McCausland: That is excellent. Will you also explain how the system works in the Catholic sector? That will enable us to see how it might potentially work for the controlled sector in the future.

2870. Mr C Stewart: Certainly; I can talk to colleagues who administer that process and elicit a detailed description.

2871. Mr McGrath: We can maybe bring a paper back to the Committee, because we are looking at how we are going to modernise our whole approach to that, so we need to set it in that context.

2872. Mr C Stewart: You rightly pointed out a number of deficiencies in the current arrangements. In doing so, you are making a good case for us to move as quickly as possible to establishing the ESA and to having new and revised arrangements to address the very issues that you raised.

2873. Mr McCausland: Your logic was going well and then it went slightly astray, but we will allow for that. I want you to move to a new system of equality. It is about getting that correction, and I welcome that. Getting that information will help us in that direction.

2874. The Chairperson: Would it not be preferable to move to the system in the Bill, rather than to the system with the ESA? Then you would have the trust that we spoke about earlier. It is clear that other sectors have issues. Nelson articulated the issues from the point of view of the controlled sector — there is no trust there.

2875. Mr C Stewart: Many sectors have issues with governance, and the point that you made at the beginning was absolutely correct. The current arrangements are Byzantine. There are weird and wonderful arrangements of compositions of boards of governors, and separate administrative arrangements and different management types for schools have developed over the years. However, the central thrust of the RPA proposals is that that is unnecessary. It adds no value; in fact, it detracts value from the education system. Therefore, we need to move as quickly and as far as we can towards harmonising those arrangements.

2876. You made a particular point, which is symptomatic of the situation — instead of responding to and addressing issues of ethos properly, we use management type as a very imperfect proxy. We need to move away from that. Ethos has a role to play, and it needs to be recognised and handled properly on an equitable and consistent basis across all sectors.

2877. Mr D Bradley: You answered the point that was made by the commission, which suggested that boards of governors should be the formal employers of staff rather than the ESA. However, it is not beyond the realms of possibility that that arrangement will change in the future. It may turn out that boards of governors, not only in Catholic maintained schools, but in other schools, will become the employers. If that were to happen, how would you protect teachers from the current situation, which the unions described earlier, that is, lack of clarity; pension difficulties; lack of transparency; lower standards; discrimination against women; and so on? If boards of governors were to become the employers, would the Department be in a position to ensure that that situation would not exist in the future?

2878. Mr McGrath: The Minister is supporting the model of a single employing authority to tackle, inter alia, the sort of issues that trade union colleagues flagged up and that you have repeated. If we were to conjecture that we lived in a world in which there was no single employing authority, the issue of how we would stop those matters arising would be down to political decisions and legislation, and to moving from the situation that we are trying to put in place to change it.

2879. Mr D Bradley: Yes, but it is not beyond the realms of possibility.

2880. Mr McGrath: That issue would be addressed when those changes were being made.

2881. Mr D Bradley: That is what I am asking. Would you be able to address those issues in the future?

2882. Mr McGrath: I do not know. On the basis of the direction that we were given on the issue, the single employing authority is rightly seen as a method of tackling and eradicating existing deficiencies. If someone wanted to replace the single employing authority, it would be a challenge to demonstrate that those deficiencies did not return to a greater or lesser extent.

2883. Mr D Bradley: It would be down to boards of governors then.

2884. Mr McGrath: No. It would be down to the person who might be sitting at this table at a future date articulating the case for a change in legislation that their Minister of the day wished to implement.

2885. Mr C Stewart: That is entirely right. It would be extremely difficult under those arrangements. The Department could not abandon its responsibilities, but it would be extremely difficult for the Department or the ESA to address the range of risks and difficulties that you listed.

2886. One of the things that was said in an evidence session last week — and it was stated previously by the GBA — was that we ought to be in a position whereby individual boards of governors are the determinants of what is lawful and what is not.

2887. If the Assembly decided to do that, the difficulty would be that 1,251 schools potentially represent 1,251 approaches as to what is correct, lawful and best practice in the publicly-funded education system. In those circumstances, it would be extremely difficult to ensure the sort of consistency or equality that I think lies behind your question.

2888. Mr Lunn: On the issue of the consultation on the appointment of community governors, and the commission’s request that “consult" should be changed to “in consultation with", I see that the Department regards that wording as too imprecise. Is that based on legal advice?

2889. Mr C Stewart: Yes, it is.

2890. Mr Lunn: There is no onus on the Department to make a suggestion for a change to something that it agrees with, but how would the Department have responded if the commission had asked for a change to “having consulted with", or to leave it as “in consultation with", but with the caveat that the ESA has the ultimate decision? I believe that I am right in saying that that is in the Bill anyway — the phrase “community governors chosen by ESA" is repeated about 10 times, and “amendments to the scheme" is also mentioned. Therefore, that is pretty clear. What is the problem about using the phrase “in consultation with"?

2891. Mr C Stewart: The Department considers the proposal to be very clear. What is not clear is what the commission is telling us is broken. Before we try to fix it, we must know what is broken.

2892. The commission said to the Department and stated in its evidence to the Committee last week that the current arrangements are working very satisfactorily from its point of view. Those current arrangements are clear. We know exactly — in legal terms — what “consult" and “appoint" mean. The difficulty is that the Legislative Counsel states that he does not know what “in consultation" might mean. It sounded to him, as it did to me, like joint appointment. The difficulty with joint appointment arises when the two participants fail to agree.

2893. Mr Lunn: I did not get that impression from the evidence last week, but I suppose that I can look at the wording again.

2894. Mr McGrath: In the evidence session last week, Bishop Walsh in particular made the point that they were happy with the existing arrangements. He seemed to have a view that the form of wording that the commission was offering would somehow imply a guarantee that there would be deeper and more meaningful consultation than the form of wording that the Department was suggesting. In a sense, it is neutral — the spirit of the consultation is separate from its precise legal nicety.

2895. The Department is saying that the legislative draftsman sees a probable diminution — rather than added value — in using the words “in consultation with". Ultimately, the appointments will be made by the ESA, and diluting that will cause confusion.

2896. Mr C Stewart: That formulation carries considerable risk. We must avoid making bad law, and law that is not clear is bad law. We know what “consult" means. There is a body of case law that sets the parameters very clearly.

2897. We know what a “reasonable requirement" is for the ESA or any public authority — what it must do, and how it needs to conduct meaningful consultation. However the phrase “in consultation with" would be new territory. Its meaning would be unclear; therefore, carries a significant risk of making bad law — law that is not clear and that would have to be interpreted by the courts, probably after a dispute.

2898. Mr Lunn: If they come back to the Department with the suggestion of using the phrase “having consulted with", would your legal expert consider that?

2899. Mr C Stewart: We would certainly seek advice on that. With my usual caveat that I am not a lawyer, I cannot see any difference between “having consulted with" and the form of words in the Bill.

2900. Mr Lunn: I am not a lawyer either, but I fancy that I can see a difference; “having consulted with" is much closer to “consult" than “in consultation with".

2901. Mr C Stewart: Sorry, that is what I meant. I do not see any difference between “having consulted with" and “consult".

2902. Mr Lunn: If there is no difference, why not placate them? I will have them put that to the Department to see what happens.

2903. The Chairperson: You made a comment that law that is not clear is bad law. The Committee has heard from a number of people who said that there was no clarity in the Bill; therefore, it must be bad law. Furthermore, you have also said that the Department is going to make changes and propose amendments.

2904. Mr McGrath: Sometimes law is changed to change the proposed content and purpose of it. On other occasions, it is changed — and rightly so — because it is not clear or because the provisions do not deal with the purpose behind the law, which can easily happen. However, as Chris said, if something on the statute book is confusing and misleading, it is bad law.

2905. Mr C Stewart: Certainly, law that is not clear is bad law. However, law that stakeholders disagree with is not necessarily bad law.

2906. Miss McIlveen: Did the Department carry out or commission any research into ethos and the protection of ethos in legislation? Furthermore, did the Department examine how that has been carried out in other jurisdictions of the UK and elsewhere?

2907. Mr C Stewart: The Department examined legislation in other jurisdictions. It has not carried out anything that I would describe as research.

2908. Miss McIlveen: Is it possible for research to be carried out in that area, perhaps by examining the Scottish or some European models?

2909. Mr C Stewart: Do you mean how ethos is dealt with?

2910. Miss McIlveen: Yes. I do not necessarily mean how it is dealt with in relation to the Catholic Church, although it does fit quite well into the discussion. The issue of ethos exists in and around the controlled sector also.

2911. The Chairperson: An issue was raised about what happened in Scotland in 1926 when Catholic schools went into public ownership. Was the ethos of those schools protected?

2912. Miss McIlveen: The ethos of those schools was protected with legal provisions. I was wondering whether the Department carried out any comprehensive work in relation to that, which is obviously a key theme in all this.

2913. Mr C Stewart: No work has been carried out in relation to that. As I said, the Department has examined the legislation in various jurisdictions and the various suggestions that were made by stakeholders. The Department’s view is that the current and proposed legislation provides adequate and satisfactory protection within the body of Northern Ireland law for ethos to be properly reflected.

2914. The case made by the commission, and the GBA before them, was that the Department simply should adopt the legislative provisions that apply in other jurisdictions. Beyond that, they did not actually make a case.

2915. The Department has not been told what is broken that we need to fix, and I am not clear on what the commission or the GBA are arguing that needs to change. There is a risk of making bad law in attempting to legislate for something when it is not clear what it is that we are trying to legislate for.

2916. Miss McIlveen: I do not necessarily disagree with you, but I want to see what evidence has been used to backup the Department’s argument. I also want to see the evidence that has been used for and against the arguments of the commission and GBA.

2917. The Chairperson: Is there something that could be provided to the Committee to give it some indication about that issue?

2918. Mr C Stewart: Could you clarify that for me, please? I am not sure what the Committee requires.

2919. The Chairperson: It relates to what Michelle has set out. What happened in Scotland in 1926 is a specific example of how faith-based schools were placed into public ownership and certain provisions were made to protect the ethos of those schools. How is that different from the legislation that is before the Committee?

2920. My understanding is — and reference was made to it in the submission by the commission —that in the Scottish model, specific provisions were made so that there was no dilution of ethos in Catholic schools that are governed by the state.

2921. Mr Poots: In Northern Ireland there is a Catholic ethos in the Catholic sector. In the controlled sector, there is a Christian/Protestant ethos, albeit not as evident as that in the Catholic sector. However, school assemblies and religious education classes do occur, which are more focused towards that Christian/Protestant ethos. The Committee wants to know how that ethos can be protected in the legislation.

2922. The Chairperson: How was the ethos of the transferors protected when they came into existence? Obviously, they transferred their ownership and became part and parcel of what was the then established institutions. How did they view the protection that was given?

2923. Mr C Stewart: The transferors have made it clear that they feel aggrieved about the changes. The protection that was given was the right to nominate school governors and the right to reserved membership on the education and library boards. We understand their position and their concerns about any changes to either of those protections.

2924. Our difficulty is with those people who say that we can adopt a simple model that is used in Scotland or elsewhere. There are many problems with that, the first being that the legislation for the Scottish model was enacted in the 1920s. A lot has happened since then generally and in Northern Ireland specifically. We have a body of European legislation that now impacts on much of this. We have the Northern Ireland Act 1998, which determines the legislative capacity of the Assembly, and we have the European Commission of Human Rights, which not only affects statue law, but very significantly changes the body of case law and how it affects those sorts of matters. Therefore, it is difficult to say how exactly that 1920’s legislation applies in 2009, never mind what the rationale was for making that particular change all those years ago.

2925. We are happy to look into that further and to offer what information we can to the Committee, if you feel that that will be helpful.

2926. The Chairperson: That will help to give us some idea of where this is taking us.

2927. Mr McGrath: We will do our best. The issue is about what the legislation provided for, it is about cause and effect, and about the perception of whether ethos is being protected and fostered.

2928. Mr C Stewart: What John is saying, and what I hinted at, is that I am not convinced that there will be a great deal of value for the Committee in expending a lot of time and effort on that model. The points that Michelle and Edwin made are very significant. At present, no clear statement about the ethos of controlled schools or the controlled sector has been written down anywhere.

2929. We will look to the controlled sector representative body to get that sector to agree on a set of principles and values in order to start forming a description of the ethos that pertains to that sector. I mentioned that point to school principals during helpful early discussions. Once we have a clearer view of what that ethos is, we can come to a view about how it might be protected in legislation.

2930. The Chairperson: What work is being done to try to get that definition? I know that this is probably a well-rehearsed point but, to date, we have not seen much progress on any work being done for the controlled sector. We have no business case, they are still behind and now you are putting another issue on the table — the definition of the controlled sector’s ethos. What work is being done to try to address that huge deficit?

2931. Mr McGrath: We are working on that, but are conscious of the fact that we had a lot on. As Chris said, we need someone to articulate and explain to us what the ethos is — it is not for us to commission an ethos. Edwin’s and Nelson’s interventions were helpful, because we are trying to promote conversations. Possibly, a question still exists over whether the controlled sector has a single ethos or whether there is a broader range, such as the examples that Edwin discussed.

2932. Mr McCausland: That gets to the heart of the matter. This is not going to go anywhere unless there is agreement and acceptance at the heart of the Department about the ethos of the controlled sector. As you said, that is not a matter for the Department to determine. However, legislative obligations and other obligations will help to shape that.

2933. Clearly, the Transferor Representatives’ Council (TRC) has a role in this matter, but it is not the only player. Other organisations and interests should be involved, particularly with regard to the cultural as well as the religious ethos of those schools. The situation is not as complex as people make out. What percentage of children in the controlled sector is from the Protestant/unionist community?

2934. Mr C Stewart: I cannot answer that today; we can add it to the grid.

2935. Mr McCausland: It is probably about 95%. It would be useful if you could send on two things with the grid. One is the percentage of children from each background in each sector. Some 99% of children in Catholic schools are from the Catholic community. In controlled schools, 95% of children are from the Protestant community.

2936. Mr C Stewart: It would not surprise me if those figures were correct, though within individual schools there will be variations.

2937. Mr McCausland: Vere Foster Primary School in west Belfast is an example of a school with a varied intake. That is the only such school that I am familiar with in Belfast, though there may be others. In due course that school will close. I have spoken to folk who have connections with the school, and I believe that its closure is likely as part of a reorganisation in that area. Those children will, presumably, go to Catholic maintained schools or to Irish-medium schools.

2938. In addition, we need to know what percentage of children in the Catholic maintained and controlled sectors come from ethnic minorities. This was a point that I made earlier to the representatives of the unions. It may be 1% or 1·5%.

2939. Mr C Stewart: Again, that would be subject to considerable geographical variations. It would be much higher than that in some areas.

2940. Mr McCausland: It will be helpful to have that information — for the Catholic maintained and the controlled sectors — as it will remove the myth that has grown up about the huge diversity of the controlled sector. That sector is much more homogenous than people suggest.

2941. Mr C Stewart: I do not disagree. Neither do I disagree with the list of the features of controlled sector ethos described by Edwin. Most, if not all, schools in the controlled sector recognise those as elements of their ethos. However, it has never been written down or clearly expressed in the past. Perhaps, many in that sector have never felt that they have a right to have such an ethos or to give clear expression to it. That is something that we need to move beyond quickly.

2942. Mr Poots: It is an unspoken ethos.

2943. Mr C Stewart: Yes, it is.

2944. Mr D Bradley: I have a question about the role of sectoral bodies in relation to raising standards. You said that the sectoral bodies would take an interest in the performance of the schools and have a role in promoting high standards generally. How will that role interlink with that of the ESA in raising standards?

2945. Mr McGrath: The ESA will have an executive role in helping to raise standards in schools. Sectoral support bodies will clearly have an interest in promoting high standards and contributing to the appointments to boards of governors. However, their role is pastoral, rather than executive.

2946. There were different articulations this morning and last week as to the role of sectoral support bodies. They will help to support the sector without, necessarily, intervening in individual schools. The executive role is for the ESA. As Frank said earlier, we should fund the sectoral bodies sufficiently for what they need to do and no more. It is important that there is no confusion: promotion of and raising standards is the ESA’s responsibility.

2947. Mr D Bradley: The role of sectoral bodies in raising standards is, then, ill defined.

2948. Mr McGrath: We expect them to have an interest. The business cases indicate that. However, they will not have a statutory duty to do so. The duty to promote standards in the public sector, and the resources to do so, belongs to the ESA in conjunction with the ETI.

2949. Mr D Bradley: Is it possible for the Committee to see the businesses cases that have been submitted?

2950. Mr C Stewart: We intended to bring them to the Committee when they were concluded. It would be unfortunate to put the business cases into the public domain in that way while we are still in negotiation with the organisations. The sectors might find that unhelpful.

2951. Mr D Bradley: Will we be able to see them at some future date?

2952. Mr McGrath: Yes.

2953. The Chairperson: The Committee has written to the Department listing a whole range of concerns and information requests about clause 8, and it has tried to bring them all together. Chris said that the Minister would probably propose secondary legislation. Is any thinking emerging on independent appeals or regulation to address the concerns that we have about clause 8?

2954. Mr C Stewart: For clarification, what I said, or what I intended to say, was that the Minister would consider a suggestion from the Committee that we should have subordinate legislation, rather than relying merely on guidance.

2955. As regards the appeal or challenge mechanism, the suggestion that we floated earlier, which can be developed if it would be helpful, would be a specific link between the Department’s power to direct in article 101 of the Education and Libraries (Northern Ireland) Order 1986 and a complaint by a board of governors that the ESA was somehow behaving improperly in relation to the discharge of its functions. That would not be a terribly difficult technical challenge, as there is a precedent for it in the legislation. It could be argued that existing legislation already allows for that. However, there would be value in bringing the respective provisions very closely together and associating them with the employment provisions in the Education Bill. The Minister would be willing to consider a suggestion from the Committee to that end.

2956. The Chairperson: The Committee has put those matters in the letter which has now gone, and will await a response.

2957. Thank you very much. We will see you next week.

25 March 2009

Members present for all or part of the proceedings:
Mr Mervyn Storey (Chairperson)
Mr Dominic Bradley (Deputy Chairperson)
Mr Trevor Lunn
Mr Nelson McCausland
Miss Michelle McIlveen
Mr John O’Dowd
Michelle O’Neill
Mr Edwin Poots

Witnesses:

Mr Frank Bunting

 

Irish National Teachers’ Organisation

Ms Avril Hall-Callaghan

 

Ulster Teachers’ Union

Mr Seamus Searson

 

National Association of Schoolmasters Union of Women Teachers

Mr Chris Stewart
Ms Eve Stewart
Mr John McGrath

 

Department of Education

2958. The Chairperson (Mr Storey): I hope that today’s business will be shorter than last week’s marathon session. The Committee will seek to avoid having so many and such protracted presentations in the future.

2959. Today we will have presentations from the Ulster Teachers’ Union (UTU); the Irish National Teachers’ Organisation (INTO), and the National Association of Schoolmasters Union of Women Teachers (NASUWT). We will also hear responses from the Department — on today’s presentation from the unions, and on the issues raised last week by the Council for Catholic Maintained Schools (CCMS) and the Northern Ireland Commission for Catholic Education (NICCE).

2960. Avril, Frank and Seamus; you are very welcome. Please make your presentation and members will then ask questions.

2961. Ms Avril Hall-Callaghan (Ulster Teachers’ Union): We thank the Committee for the invitation to give evidence. The Bill is very important, and we have notified the Committee that there are a number of points on which we wish to speak.

2962. Before I start, I will distribute a joint statement on the Education Bill that has been issued by the five recognised teaching unions in Northern Ireland. The main thrust of it is that we are absolutely convinced that the education and skills authority (ESA) must assume responsibility — as employing authority — for all sectors in education. Everybody must come into the tent, including alternative education provision, which Seamus will mention later. Otherwise, there will not be the equality within the education system that we feel is absolutely vital.

2963. A number of things flow from that in relation to the redeployment of teachers and saving on duplication — we are horrified at the thought of a multiplicity of employers carrying out the same functions. Where would the control mechanisms be? That is the main message that the unions want to get across to the Committee today.

2964. I understand that most of the other witnesses come from the alternative point of view. However, we represent the teaching force that the Bill will affect. Staff who work in schools alongside teachers will also be affected. The unions are certainly not happy about the thought of those staff working under different terms and conditions.

2965. The second point is that we are concerned about the lack of specific reference to nought-to-six years’ provision. The Department of Education is at present working on a review of nought-to-six provision. We are concerned that there has been no specific reference in the Bill, apart from a small mention of materials for young children being produced by the Council for the Curriculum, Examinations and Assessment (CCEA). There are rumours that there is an intention to, in some way, separate early-years provision from education, which we totally oppose. The unions feel that the years nought-to-six are a vital stage of a child’s development. Any language, or other, difficulties would be picked up at that stage, and we feel that it is vitally important that an education professional is involved in the early-years provision.

2966. I know that the curriculum has changed at that stage and that some people would argue that one does not need to have a teacher there, but that is not the case. Just because it is a more relaxed environment does not mean that same amount of professional input is not required. Teachers picking up problems at that early stage will help the whole system later.

2967. We also feel that equity in funding for all sectors is essential. The Committee knows that the unions have been campaigning for equity between primary- and secondary-sector funding, because we believe that most resources should be invested in the early stages in order to prevent problems developing later.

2968. Retention of salaries at the centre would be welcomed. There is no point in trying to streamline an education system and then having many different people paying out salaries. The same principle applies to schemes of employment. It would be much better to have uniform schemes of employment. There should be no provision for schools to vary from that scheme.

2969. The unions were interested to see in the Bill that employment for peripatetic teachers should be subject to negotiation with the schools. We certainly believe that it should be subject to negotiation. We favour a model that retains peripatetic teachers from within the teaching force instead of creating compulsory redundancies. A pool of peripatetic teachers of varying expertise should be maintained. In addition, teachers unions as well as the schools should be consulted about the use of those teachers. That is something that is lacking throughout the Bill — teachers’ unions are not being acknowledged as one of the major stakeholders.

2970. At present, the education system relies far too heavily on buying in expertise from outside. Therefore, we were concerned about the reference in the Bill to the commissioning of research. We feel that there is adequate expertise in the system to ensure that any required research is done by the people who know the system. When outside providers come in, they ask the people in the system for their views anyway; so, let us cut that out and put the money put into front line services.

2971. We are concerned that the Bill does not go far enough in trying to rid us of the multiplicity of bodies involved in the education service. We were delighted when we thought that all the sectoral bodies were going, but now there is a suggestion that not only are they being retained, but attempts are being made to create new ones. If we are trying to streamline the system, surely we should be trying to exclude those bodies.

2972. We are not saying that those sectoral bodies should not be able to comment, but they should do so in the same way as teacher unions. We are not funded out of the education budget, and other bodies, such as the Churches and the integrated education sector should fund themselves and leave the education budget intact for the education of children.

2973. The General Teaching Council (GTC) is mentioned in the Bill. That is one of the areas in which there should be a statutory obligation for consultation with the teacher unions. We have no difficulty with the GTC in that regard. Indeed, we have a good relationship with the GTC because the Registrar has placed it as a high-profile, important item. We do not know what the future holds, so we would like to have statutory provision for consultation.

2974. Schools should operate on a multicultural basis. As members know, our society has changed drastically in recent years. There has to be a change of emphasis: schools should be open to all, and a diversity of cultures and opinions, for instance, is to be welcomed.

2975. The governing body — the ESA — will be too small: eight to 12 people is not enough. If a couple of those people are not available on any particular day, then a small number of people could end up managing a huge employment sector. The number should be increased to 15 to 19 people, 25% of whom should be political representatives — which is what you would have wanted within your existing model. There should also be guaranteed places for trade unions at the table.

2976. It is vital that the Department of Education retains the ability to direct the ESA, because we are sure that there will be times in the future when a guiding hand will be needed.

2977. Mr Frank Bunting (Irish National Teachers’ Union): I will be brief. I want to emphasise that the five teacher unions are of the view that there should be a single employing authority for all teaching and support staff in Northern Ireland. There is a range of reasons for that view, and I can go into those reasons later, if you wish.

2978. With regard to clause 10 and the situation that we are moving into regarding redundancies and pensions, Ms Hall-Callaghan has suggested that there should be a provision in the Bill for the ESA to be able to employ panels of peripatetic teachers. That would be important, particularly for teachers in rural areas who, perhaps, will be subject to compulsory redundancies over the next decade.

2979. Clause 13 relates to the provision of training. The broad thrust of the Bill is the need for accountable autonomy, and that means schools taking the lead. In the current model, professional development and in-service training are provided on a mechanical, statutory basis by the Curriculum Advisory and Support Services (CASS) of the five education and library boards, with funding being diverted away from schools to the boards so that they can do that. I would like to see that changed to a mixed-economy model in which schools receive the lion’s share of the budget. The GTC would have some responsibility for the budget, and there would be a smaller share for the ESA to deal with. That is generally in line with the thrust of accountable autonomy.

2980. We value the role that the Education and Training Inspectorate (ETI) plays. It is currently under the auspices of the Department of Education, and we advocate strongly that that role be continued and that the inspectorate should not be separated from the Department.

2981. Mr Seamus Searson (National Association of Schoolmasters Union of Women Teachers): Our central point is about the need to have a single, central employer. That is crucial to us, because it makes the most sense. It makes no sense for schools to want to be the employer and deal with all the legal situations. Why should they want to do that? They should be guided by the ESA, and that is one of the major messages that I want to get across this morning.

2982. I shall take a slightly different tack and talk about the way in which schools operate. The important part of a school is what goes on in the classroom, whether that is in a field or in a special unit. As you might expect a representative from a teaching union to say, it is important to realise that teachers are an important part of the teaching and learning experience for youngsters. We want to emphasise that, but we also need a system that supports the teacher in the classroom. That is why schools, principals and management need to be able to support the teacher in the classroom; it should not be the other way around. Resources and support staff should be focused on supporting the teacher.

2983. The whole idea of moving away from the current number of employers was to try to streamline the system, and the next step should be to streamline things inside schools. Schools are expected to carry out many duties, and teachers and principals are not the best people to do them. We need to focus on what schools are for, create structures and systems that will support teaching and learning in schools and allow all young people to reach their full potential. The challenge for the ESA is to create an educational support system that allows schools to focus on the activity in the classroom.

2984. Some of the functions that have been talked about in other places do not make any sense. For example, the ESA should be able to relieve schools of bureaucratic and administrative burdens and offer a range of support services. If the ESA is to be the single employer, why is there a need for various employment schemes? That is unnecessary. A teacher working in Bangor should be treated the same as a teacher working in Derry, in the same situation, and that should also apply to support staff. Why would schools want to invoke extra work and extra responsibility? They have enough to do as it is.

2985. Avril mentioned alternative education providers. Education does not simply apply to one school but to a whole range of units and outfits across Northern Ireland, and the ESA should have responsibility for all of those. Outreach centres such as Newstart Education Centre, Conway Mill Education Centre and Lagan Valley Educational Project are working and supporting youngsters who are outside the education system. In some instances, they rely on charitable funding, which does not seem to make any sense because those youngsters are part of educational responsibility and need to be brought back into line.

2986. Finally, provision for 14-to-19-year-olds is straddled across two Departments, and we see potential conflict with that in the future. An important consideration is who will be the lead partner for education of people between the ages of 14 and 19. We agree that the major issue is the importance of having a single employer. Why should we have a myriad of other obstacles in the way?

2987. The Chairperson: As you are aware, today’s edition of ‘The Irish News’ reports on a conflict between the teaching un