Official Report: Minutes of Evidence

The Chairperson (Mr Weir): I welcome back Caroline Gillan, the director of access, inclusion and well-being, and Alan Boyd, the head of the pupil behaviour management team. I advise members that this is a public session.

The Committee will seek to review the clause-by-clause table and seek clarification from departmental officials if required. I want to put it on the record that members should give an informal indication of their views on all the proposed amendments to the Addressing Bullying in Schools Bill and should indicate informally for each of the proposed amendments whether they wish to pursue it. That obviously does not preclude the pursuit of whatever amendments members want outside of the direct Committee phase.

I welcome the officials. We concluded the informal scrutiny of clause 1, and the table has been updated to indicate the Committee's informal decisions. I refer you first to comment 1.27 on cyberbullying. The table now includes a suggested amendment for the Department to consider. It has been suggested that the amendment is a little widely drawn and may greatly extend the obligations on schools. I ask Caroline to comment on that.

Mrs Caroline Gillan (Department of Education): Would you mind reading out the proposed amendment?

The Committee Clerk: The proposed amendment states:

This is about cyberbullying. The scope of a school's responsibility extends to when pupils are under the lawful control of the school — when they are travelling to and from school, during the school day etc. Members felt that cyberbullying was a very important issue and that it would be easy for a would-be cyberbully to evade the scope of the school's responsibility by merely tweeting, texting or doing whatever they were going to do outside of the scope set out in the Bill and yet still have a very significant impact on their victim. The Committee informally wanted an amendment that would extend a school's responsibility to capture that situation. However, there had been a suggestion from stakeholders that, if such a thing was quite widely drawn, it might open schools up to a pretty big liability. Chair, I think that you were seeking the Department's views on that and the possibility of a slightly different amendment.

The Chairperson (Mr Weir): Yes.

Mrs Gillan: First, as we mentioned last week, we absolutely recognise the need to deal with the issue through guidance and clarity, and we explained that we have work under way through the Anti-Bullying Forum and the e-safety strategy. The real concern about extending the duty on schools would be that the area is likely to become more litigious as time moves on and we could be increasing the liabilities of schools in an unreasonable way. If you were to extend the duty, it would be key to do so in the context of reasonableness and what schools could be reasonably expected to deliver on.

The current chair of the forum, Dr Purdy, gave you evidence some time ago. The research that he carried out, in 2013, in schools North and South acknowledged absolutely the need for legal clarity on cyberbullying. It did not necessarily find that there needed to be additional legal duties, but it absolutely emphasised the need for guidance and training. I thought that that focus on guidance and training was interesting. We would prefer to go down that route rather than, at this stage, potentially increasing schools' liability without really teasing out all the issues.

The Chairperson (Mr Weir): We will probably come back to that at a later stage. The proposed amendment in front of us perhaps goes a little bit wide. We had looked at considering something about the impact during the school day or within school premises where you maybe had something from outside school influencing that. The part of the amendment that refers to a:

seems to be pretty widely drawn.

Mrs Gillan: In some of the case studies in Dr Purdy's study, the teachers commented that they came in on a Monday and received reports from parents of what had happened over the weekend on Facebook, and they ended up spending most of Monday trying to ascertain exactly who did what while respecting the rights of the alleged victim and the alleged bully. It is about whether we would increase that duty. The issue absolutely needs to be resolved, but it is about whether it is for schools or parents to do so.

It is interesting whether there would be an ability to put into that amendment something like "as far as is reasonable" or "as far as is reasonably practicable" — something that recognises that schools cannot be expected to investigate and be a judge in every scenario. As I said, my real fear is about the extension of the duty on boards of governors and whether they can reasonably deliver on that.

The Chairperson (Mr Weir): Does anybody else have any other comments on that? No. It is an area that we will have to consider during the formal consideration. We will move on.

The Committee Clerk: Is the Committee content to consider another option?

The Chairperson (Mr Weir): To be perfectly honest, I think that we have to look at what options there are. As I said, I feel that the way that the amendment is drafted is possibly a little wide. That does not mean that nothing should go in there. I take on board what has been said about some level of qualification of what is there.

We will move on to clause 2, which is described as requiring the board of governors of each grant-aided school to determine measures to prevent bullying involving registered pupils at their school under certain circumstances and to ensure that policies designed to prevent bullying are pursued. Again, we will break it down into different sections.

Comments 2.1 to 2.7 refer to anti-bullying policy obligations. The first issue in relation to that is whether the Department supports the suggestion that the Bill needs to be rewritten to place an explicit statutory duty on boards of governors to have an anti-bullying policy and a separate duty to ensure that the policy is implemented. The other issue that arises from that area is an explanation of why the Bill does not extend to independent schools, early years settings and pupils who are in education other than at school (EOTAS).

Mrs Gillan: First, I will comment generally on the terminology used in clause 2. The reference to "policies" and then "measures", which is the more detailed element, is the standard drafting across education legislation. When we deal with discipline policies and safeguarding, it is around policies and measures. Schools are well used to and familiar with that terminology, and, for consistency, that has been carried through. We would prefer to stick with that wording.

The suggestion has been made that we should be a lot more detailed about exactly what we mean, but for us that level of detail is not required or appropriate in primary legislation. That is exactly what we will draw out in the guidance, and there is specific reference to the guidance that schools have to have regard to. Some stakeholders requested specific references to certain types of bullying, but which types do you reference and which do you leave out? We are better with a blanket reference to all bullying in schools.

Members will be aware that all the duties on boards of governors are for boards of governors of grant-aided schools; the duties do not touch on independent schools. The whole structure to date has not brought independent schools into the mix in terms of duties on their boards of governors. The only powers that the Department has at present over independent schools relate to registration and inspection. Independent schools must be registered, and the Department may remove registration. The Education and Training Inspectorate (ETI) is able to inspect in relation to the efficient instruction. That is the extent of the duty, and to go down the route of pulling in independent schools, just for this provision, would be a massive departure.

The Chairperson (Mr Weir): Mention was made of the early years setting. Was it felt not to be appropriate to include that?

Mrs Gillan: Again, it comes back to the definition of pupils, which is pupils at grant-aided schools, and it relating to boards of governors of grant-aided schools. Bringing in early years settings has not been explored in the consultation. We have not engaged with stakeholders on what practically would be expected of early years settings.

The Chairperson (Mr Weir): The other issue, and we were talking about potential problems with the application to special schools, is proving the intent to bully in three-year-olds or whatever. What about EOTAS?

Mr Alan Boyd (Department of Education): I will address that point. The Department issued guidance in September 2014 on the minimum standards that were expected to be provided for any pupil in EOTAS. It said at a very early stage, paragraph 4.4, that pupils were entitled to expect that all their needs would be met as effectively and to the same standards as in the mainstream. Paragraphs 6.11 to 6.14 of the guidance went further by explicitly stipulating that all EOTAS settings must have positive behaviour, pastoral care, safeguarding, and anti-bullying policies that comply with all relevant DE circulars and legislative requirements. All EOTAS settings are subject, as is any school, to regular ETI inspections. We consider, therefore, that EOTAS settings already fall within the scope of the Bill.

The Chairperson (Mr Weir): I will open up to members. Trevor. Sorry. Sometimes we sit up here like bad auctioneers. Robin. I do not know if Trevor is going to do a bit of ventriloquism. I will hear Trevor's voice coming out.

Mr Newton: On the point about reassurance, when ETI comes along to inspect the records, does it expect to see commonality across the schools, or would there be variations in the way that a school might keep the records?

Mrs Gillan: On the duty to keep records, we will specify in guidance what might be good practice. We referenced previously the pilot done in 2008 using the C2k SIMS system, where schools kept them on that.

Mr Newton: That means nothing to me.

Mrs Gillan: OK. The legal duty does not specify how the school is to keep the record, so there is a degree of flexibility. In reality, when we come to develop the guidance, we will want to talk to schools and ETI to see what is the easiest way for schools to keep these records, because we do not want to create a huge bureaucratic burden. When ETI is inspecting — I think that John Anderson mentioned this — it already expects to see, and good practice would already dictate, that the school keeps records in dealing with discipline and, indeed, bullying cases. We will, to some degree, say in the guidance, "Here is the way you should keep your records." The legislation already says the sorts of things that should be covered. The ETI already goes into schools and asks for case studies on particular bullying incidents. As part of that, we expect them to look from the very beginning to the very end in terms of the record keeping. There will be an element of consistency, as set out in this legislation, but there will obviously be some flexibility for schools in how they keep a record and the manner in which they keep it. That is something that we want to explore with the schools and others when we develop that part of the guidance.

The Chairperson (Mr Weir): Are there any other comments on this section? Is anyone seeking an amendment on this? I will take the silence as no.

We move on to the next section, comments 2.8 to 2.10, which cover the review process for anti-bullying measures. Will the Department explain why there is no fixed time in the Bill for a review or an obligation to consult pupils in the development of anti-bullying policies? Can you also explain why it is not necessary to amend the Bill in order to place an explicit responsibility on ETI or the Education Authority to monitor compliance by the governors?

Mr Boyd: On the length of a review period, as John Anderson referenced last week, we believe that most schools are already following good practice in this area, and we did not wish to be unnecessarily restrictive in the duties we imposed upon schools. As we understand it, typically, schools will review their policies on a four-yearly cycle, as the change in boards of governors takes place. As part of that, they will commonly also review the school's scheme of management. That is a natural break point, but we did not want to deny schools the flexibility if they had, at any stage, a significant change in the composition of their board.

If, as a result of the recording, they identified a particular problem with some aspect of bullying — such as disablist bullying or homophobic bullying — we considered that it would be appropriate for them to have the flexibility to react and immediately move into a review of their policy. So, we felt that it would be unhelpful and unnecessary to specify tighter time frames.

The Chairperson (Mr Weir): The one direct amendment that has been suggested has been proposed for clause 2(1)(f) and is about consultation taking place on the review. There has been a suggestion from a number of organisations that pupils be included in the list of those who should be consulted on the development of policies.

Mrs Gillan: The Bill already provides for that. It talks about the principal, registered pupils at the school and parents of those pupils. That is provided for in clause 2(1)(d) and clause 2(1)(f).

The Chairperson (Mr Weir): OK, so that covers it.

The other issue is the monitoring arrangements of the ETI and the Education Authority. Will you comment on that?

Mrs Gillan: We are using the traditional monitoring arrangements of the ETI inspections. They always pick up the discipline and pastoral care requirements, and, as I said, they already pick up the anti-bullying practices in how schools deal with particular cases. We feel that those are the correct monitoring requirements, rather than taking another additional duty to monitor.

Mr Newton: In second-level education, with the school committees and prefects, do you intend there to be a formal mechanism for consultation on the review?

Mrs Gillan: How schools want to engage with their pupils is very much for the schools to decide. Some schools may use a school council method or incorporate it into the curriculum through learning for life and work or personal development and mutual understanding (PDMU). You could work it into the teaching in the school. We would not want to be overly prescriptive with schools on how they engage with their pupils. Every school already has processes in place for how they bring pupils into the development of policies and measures that apply to the school.

Mrs Overend: I appreciate what you said about reviewing the policy as and when in order to give schools that flexibility. However, maybe you should also put in a time-bound aspect for a review at least every year or two years, as had been suggested. A review could be done more often if they wanted, but if they find that they have not reviewed it in five years, that would be a concern.

Mrs Gillan: A year or two years would be very short. You would not necessarily have a lot of data. Knowing what schools have to do every year, that would be quite frequent. As Alan said, if issues arise, they would immediately go into a review if they are taking their duties seriously.

The Chairperson (Mr Weir): Maybe there would need to be an amendment to have a default position that says that, at a minimum, it should be done every five years.

Mrs Gillan: "But at the very least".

Mr Boyd: We could make a clear recommendation in the guidance that, "Good practice would suggest that it should be no later than — ". It is whether or not that needs the force of inclusion in the Bill.

The Chairperson (Mr Weir): Perhaps we could take that on board, Sandra. Do you want to have the draft of an amendment for something of that nature that we could at least consider?

Mrs Overend: Five years maybe would be the right time. When there have been incidents and you find out, "Well, this hasn't been reviewed in 10 years", that is concerning.

Mrs Gillan: Yes. OK.

The Chairperson (Mr Weir): As for the exact time frame, if we have a draft amendment, we can look at it from a Committee point of view. We may or may not pursue that. We may look at whether that is a different time frame or not, but those are all issues that we can at least put on the table.

The third group — 2.11 to 2.21 — relates to the scope of school responsibility. We have touched on some of the issues, such as the scope of protection for particular groups and explicit reference to extracurricular activities. You have, to some extent, addressed some of those already. A specific issue was raised about why there is no explicit reference to the role of parents in tackling bullying, which is at 2.17.

Mrs Gillan: We dealt with some of the issues in relation to the cyberbullying amendment. Arguably, this is the same issue, and maybe that is where your amendment would go in. There is a suggestion at 2.13 that the clause should be amended to read:

We feel that that is more clearly dealt with in the current draft with "at the school" or:

Do you want to go over the issues on cyberbullying again? I think that we exhausted those.

The Chairperson (Mr Weir): No, that is fairly consistent. We mentioned the issue of whether we need to extend the scope, but have a caveat about reasonableness, such as it being during the school day. There will probably be a follow-through on that, as well, on how that would be phrased. To some extent, we have gone through those issues already. I do not think that there is anything additional. Specifically, there is the point about the role of parents.

Mrs Gillan: That is 2.17.

The Chairperson (Mr Weir): That comment comes from the National Association of Head Teachers (NAHT) and the Ulster Teachers' Union (UTU).

Mrs Gillan: It calls for DE to advise parents on their role. It is hard for us to be prescriptive about the role of parents. We would see that being dealt with in training materials, guidance and e-safety guidance. Interestingly, the Safeguarding Board for Northern Ireland (SBNI) is developing two apps around e-safety and keeping children safe online, one of which is aimed at parents. That is probably a better route to go down than being restrictive and placing duties on parents. How would we enforce those and what would we do if we got a parent —

The Chairperson (Mr Weir): That comment is not just about the cyberbullying side of it but that there should be a role for parents more generally and whether that needs to be flagged up explicitly in the legislation.

Mrs Gillan: The default role is for parents except where you are dealing with behaviour in school, which is what we have tried to carve out here. If we went down the route of trying to capture the role of parents, I cannot imagine what that would look like in a clear way. That is the old chestnut: when is it parental responsibility, and when does it become the school's responsibility?

The Chairperson (Mr Weir): Does anybody have any comments on that? I would like to go back to a point in the previous section about the explicit responsibility of the ETI or the Education Authority. Why is this not directly referenced?

Mrs Gillan: We feel that those are already part of the ETI's inspection duties. The ETI inspects discipline and pastoral care, as it will with anti-bullying, so that is already covered under its role. When we talk about child protection duties on boards of governors or the wider discipline duties, we do not particularly go in and say that the ETI will inspect. That is just not the way that the system has developed. It is taken as read there.

The Chairperson (Mr Weir): Do members have any comments on this section?

Mr Newton: On paragraph 2.17?

The Chairperson (Mr Weir): Yes.

Mr Newton: I would say only that I thought that the NAHT and the UTU were making a fairly strong call on this matter. They are asking for DE:

The UTU is calling for the Bill to be amended in order to:

It does not seem to be unreasonable to request that this should be in the Bill.

Mrs Gillan: We will draw out the roles and responsibilities of parents in the supporting guidance. The guidance will be not just for schools; we envisage developing guidance and information for parents. Also, if a school is developing its particular measures and is consulting parents, it would not be unreasonable then, in light of what we have said in the guidance around clarifying what is expected of parents, for it to elaborate that in its policies and measures. The issue is around making sure that everybody is absolutely clear, which is, obviously, what the UTU wants. I do not think that the legislation is the correct vehicle for this, given the research and, indeed, some previous court cases.

Every parent has a different standard as to what they expect, potentially, from their child, and behaviour is a very hard thing to define. One person's good behaviour is another's bad behaviour, or one person's bad behaviour could be someone else's free-spiritedness. It is different if you are talking about school attendance, for example, where the role of parents is referenced; you either attend school or you do not. It would be difficult to capture something like this in legislation — something that would be reasonable. That is why I think that it is better left to the guidance and to the engagement that we will have with parents' groups as well as schools and teachers.

Mr Newton: Why do you think, then, that the two professional bodies that represent practitioners feel, as I determine it, fairly strongly that they want this in the Bill?

Mrs Gillan: It is probably because they want to manage expectations. The issue is that schools feel, increasingly, that they are taking on the role not only of teaching and educating pupils but almost, at times, the parental role. Pastoral care issues are ever-expanding, hence the concern about expanding this further through any amendment without being absolutely clear about what we expect. It is about clarity, but we feel that clarity can be better achieved through development of the guidance and materials for teachers, not only on the anti-bullying issue but on e-safety issues.

Mrs Overend: I want to ask you about ETI inspection not being part of the Bill. Would it make sense for that to be mentioned in the schedule instead of in the Bill?

Mrs Gillan: As I said before, we would reference in the guidance that schools will be expected to produce evidence, probably on inspection. But, I think the way to deal with this is through the role of the ETI and what it expects. I think that, last week, John Anderson mentioned that before inspectors go to a school they produce a whole schedule of questions on whether the school is doing x, y, and z. The anti-bullying policy and those duties will be referenced. The inspectors already go in and ask for a case study. They do not just allow the school to pick and choose its case study; they speak to pupils also. It is developed depending on their engagement with the pupils at the school as well.

I think that, rather than us needing to reference it, the ETI is well set up to look at all those wider safeguarding and welfare issues. I should also point out that the ETI does not exist in legislation. The Department appoints inspectors to carry out inspections, and that is referenced to those inspection powers. I think that if you wanted to put anything in, you would have to trace it back to the powers of inspection, rather than doing it, in an isolated way, through this legislation.

Mr Lunn: Going back to paragraph 2.17, I imagine that the reason why the NAHT and the UTU made that request was because of their exasperation at the failure of parents to acknowledge their responsibilities in certain situations. I do not mean all parents. I agree with you, and I cannot see what place this would have in legislation or even in regulations or guidance. I do not know if the Department ever issued any advice to parents about bullying before, but there is no reason why it should not do so. It does not need —

Mrs Gillan: I am not sure if part of the Anti-Bullying Forum's materials include advice to parents, but we would want to do a parents' leaflet as part of this new package of guidance.

Mr Lunn: That is as far as it needs to go. I do not understand what the UTU is looking for if it is calling for the Bill to be amended to reference the role of parents.

Mrs Gillan: My worry is that enforcement could be in the Bill —

The Chairperson (Mr Weir): Does anybody wish to produce any specific amendments? We move on to the next section, which comprises paragraphs 2.22 to 2.25, on the transfer of anti-bullying responsibility from school principals to school governors. I am at a bit of a loss, especially as regards clause 2(3), about the removal of direct responsibility from principals. Why is that necessary?

Mr Boyd: Under current legislation, in article 3(3)(a)(ii) of the 1998 Order, the principal is charged specifically with the responsibility to determine measures to prevent all forms of bullying among pupils. The Bill proposes that we will elevate that responsibility to the board of governors. This is simply an attempt to correct an anomaly whereby, without this change, we would have the same duty being vested, both singularly in the principal and collectively in the board of governors.

The Chairperson (Mr Weir): Is there not merit in having some kind of dual responsibility here? Presumably, on a practical day-to-day basis, the principal would be the one who is doing this.

Mrs Gillan: The Minister's policy relates to the fact that the board of governors needs to step up to the mark and take responsibility for this. The principal is the key factor, but the Minister wants to ensure that the duty, to see the policies through and determine the actual measures, rests with the board of governors. As far as I understand it, in law, you cannot have two people doing the same duty. That, if anything, could create an element of confusion. We feel that the principal will be properly brought into the new duty, in terms of having to be consulted and having to determine the actual measures etc. Also, at practical level, the principal will be responsible for implementation. At the end of the day, the legal duty is to rest with the board of governors, and so we had to take out the anomaly.

The Chairperson (Mr Weir): I understand, but I am not 100% convinced. Do members have any comments?

Mr Lunn: Can the board of governors instruct the principal to take actions on bullying?

Mrs Gillan: The board of governors simply has to ensure that the policies are there and are being pursued, and that the actual measures are in place. It will be for the board of governors then to manage the school internally and develop and implement those policies. At the end of the day, the board of governors has to be happy that its statutory duties are being discharged.

Mr Lunn: When you say "ensure that the policies are there and are being pursued" in the school, that effectively brings in the principal and the staff.

Mrs Gillan: Through the implementation, yes.

The Chairperson (Mr Weir): Does anybody wish to pursue an amendment? In the absence of any comments, we will move on to paragraphs 2.26 and 2.27, on the issuing of guidance by the Department in relation to determining and reviewing anti-bullying measures. Can you explain why there is not a more formal obligation?

Mrs Gillan: Paragraph 2.26 is about directions issued by DE under clause 2(2). It will allow us to direct all schools, a group of schools, or an individual school to undertake a review of anti-bullying policy. It is purely about reviewing the policy as opposed to allowing us to direct or intervene in particular cases. It might be that we become aware of something at system level or, indeed, there may be concerns about a school's anti-bullying policy coming from an inspection report. It may be reasonable and appropriate for us to direct a school to review its policies.

The Chairperson (Mr Weir): Has anybody any comments? No. On that basis, we will not seek any amendments to that. That concludes clause 2. We will move on to clause 3. The first item at paragraph 3.1 or 3.2 is the issue of the words "must" and "may" versus the word "shall".

Mrs Gillan: Apparently, the word "must" is now the plain English preferred by the Office of the Legislative Counsel (OLC) draftsmen. It means the same, but this is the preferred drafting style now.

The Chairperson (Mr Weir): That probably covers paragraph 3.1 — I understand that — but paragraph 3.2 is a suggestion that the word "may" be changed to "shall" in the motivation bit.

Mrs Gillan: That does not make sense, because clause 3(3) is designed to be a menu of possible motivations but not the end of the story. If you put in the word "shall", you are saying that every incident of bullying "shall" include the following. It just would not make drafting sense. It is not the way the clause is designed. It would change the meaning.

Mr Lunn: I think that we nearly came to the same conclusion ourselves. If you put in the word "shall", you would have to say, "but not exclusively" or something like that.

The Chairperson (Mr Weir): To be fair, with any of these things, we want to get a view on every comment that has been made to us.

I move on to the next area, which is the issue of record keeping, at comments s 3.3 to 3.11. They cover the obligation on school authorities to keep a record of incidents of bullying. Does the Department accept that the Bill should specify that records include details of the incidents; for instance, whether they took place on social media information etc? Can you comment on 3.11, which suggests that the victim's permission be sought prior to a record being kept or maintained? What is the position regarding data protection assurance? One of the major concerns we have had is the need to avoid any unofficial league table in this area.

Mr Boyd: I will begin by addressing the scope of the record envisaged. The Bill, as we have drafted it, establishes the duty to record and specifies a core one or two issues that were felt to be key. We do not envisage and have never envisaged that that would be the scope, in its entirety, of the record we are proposing be collected. We consider that we would need to have a dialogue with stakeholders, including schools and governors, to determine exactly what was necessary to fully capture the incident without collecting unnecessary information, both to minimise the overall administrative burden on the school and to ensure that no unnecessary details are captured that might lead to the school being challenged for collecting more data than needed.

One of the fundamental principles of the Data Protection Act is that, where data is collected, the minimum amount necessary for the function is recorded. We felt that it was worth identifying the key areas that we feel are essential. Motivation is one of the core issues. It is one of the issues flagged up in the forum's report and in subsequent work. If data on motivation is not collected, schools cannot identify potential problems with specific issues, such as disablist bullying, homophobic bullying or bullying on the basis of race or ethnicity. That is why those are written into the Bill but others are not. As I say, we envisage and the 2008 pilot that Caroline referenced has envisaged a much wider series of data fields that schools —

The Chairperson (Mr Weir): We will come on to the data fields on motivation. What about the retention of records? There is clearly a balance to be struck. We want to have good information that can be used. However, the concern is how we avoid creating a situation where a media source makes an FOI request and then publishes a league table. You can see the headlines now: "The Most Bullying School in Northern Ireland". How do we ensure that that unintended consequence does not happen?

Mrs Gillan: On how the retention of records would be managed, schools are clearly data controllers under the Data Protection Act. Indeed, the Department issued guidance last year clarifying their role. Associated with this, the Department has already issued a records disposal schedule with suggested lengths of time that schools have to keep information. On the retention of records, the current disposal schedule refers to the discipline record element, for example, being kept until the pupil becomes 23 and then destroyed. We want to revisit that schedule and decide what is appropriate for any records on bullying. It is likely to be a similar length of time because it is linked to discipline and welfare issues.

On FOI and data protection, again, because the information is held at school level, it would be for a school to make the decision if it receives an FOI request. One would imagine that records linked to individual pupils would not be releasable because you would be able to use the personal information exemption. If schools are developing reports for their boards of governors involving very high level statistics, or are monitoring like that, there is an argument that those should be releasable. Obviously, the FOI Act does not require schools to create information, so it really would be for a school to make the decision.

The Chairperson (Mr Weir): You talk about high level figures. The problem is that those are exactly the figures that are likely to be used for a league table. If a school says that, this year, there were 111 instances of bullying, and a neighbouring school, which has recorded on a similar basis, says there were 75 or whatever, although that cannot identify the individual instances or particular circumstances or motivations, those will be the very figures that will be discoverable and can then be used. Is that not the case?

Mrs Gillan: Of course, this is the difficulty. As we may have said in previous sessions, the issue is that we are trying to create a system that protects pupils and ensures that schools deal adequately with bullying. If, as part of that, there is a risk that the school is concerned with its reputation and some organisations are deciding to publish league tables, where is the balance? Do we worry more about the reputation of a school, or are we more concerned about having effective anti-bullying policies operating in that school? Bullying goes on in every school. Parents can be quite understanding when schools are upfront about that and are shown to be proactive. I do not think that any parents are naive enough to think that, if there has been no bullying in a school in the last six months, that it is a true picture. Likewise, if it was shown that bullying was really prevalent in some schools, that may be an indicator for boards of governors to think, "Gosh! Why is that? Do we need to do more preventative behaviour". I do not really have an answer about FOIs. I think that it is —

The Chairperson (Mr Weir): We are struggling with it. There is another issue. If you have information that is discoverable, to what extent may that influence the way information is recorded in some schools? Will we get situations in which, consciously or subconsciously, there would be an ethos of minimising incidents or not recording them on the grounds that they would show up in the statistics?

Mrs Gillan: The counter to that is the civil law case, that members are probably aware of, that was taken against a school last year. What was interesting in that case was that the judge was very much focused on the need for schools to clearly record incidents and for there to be good quality records and accurate records of the complaint and the response. If schools do not record, they will leave themselves open to further criticism or to a case that comes along.

The legislation is clear about record-keeping, because it is good practice. We are also clear in the guidance that it is good practice. If schools choose not to do that, when the ETI goes in, or, indeed, if they get a challenge from a pupil or parent and are not keeping good records, they will leave themselves open to criticism if the justification is only because they were worried about possible FOIs.

Mr Kennedy: There is also the issue of liability for boards of governors and the possibility that individuals might take a case later. That is also why the timescale is important. Consideration should be given to a period beyond the school life of the individual but that does not stretch into the future and allow someone to come back and say, "In 1945, I was bullied at that school, I never got over it and I am entitled to compensation". The year 1945 is a bad example.

Mr Newton: It is outside the time — 23 years.

The Chairperson (Mr Weir): I know the point you are getting at.

Mrs Gillan: Absolutely. We will look at this with our information management colleagues when we look at that disposal schedule and how long records should be kept. That is a good point.

The Chairperson (Mr Weir): No amendments are being sought in that area.

We will move on to the next section, which deals with, in particular, the list of motivations for bullying. There is a range of things. I appreciate that the wording is "may" include, but why is there not something that creates a catch-all or that takes in other factors. Some people will look at a list, ask where they should put something on that list, and not think outside the list.

Mrs Gillan: You would only put the catch-all/other factors item in if you had the wording "shall include this, this, or other factors". By implication, the fact that the wording is "may" means there is a catch- all.

The Chairperson (Mr Weir): Yes, I understand that, but that will not necessarily be the way that people interpret it. If you provide a list of whatever length — whether it is 10 or whatever — the tendency may be for people to ask which of the 10 it comes under and they may not say that if it falls outside the 10 that they will record it separately.

Mrs Gillan: We acknowledge that there will be motivations for bullying other than those given here. Our policy aim was to focus on the section 75 categories and any others that are already in legislation, hence the gender reassignment and pregnancy elements.

The Chairperson (Mr Weir): One of the issues raised concerned some of the subgroups of the section 75 groups — for instance, dependents.

Mrs Gillan: I was going to say that we have realised that we have overlooked dependents. We would be minded, subject to the Minister's approval, to put dependents in. That was merely an oversight.

The Chairperson (Mr Weir): We have heard suggestions about what should be in. Quite often, we have a debate about what should be in primary legislation, regulations and guidance. Although the wording is "may" and is therefore widely drawn, it seems to be quite a lengthy list and it seems prescriptive to have those groups in the legislation. That is slightly surprising.

You mentioned an oversight: the issue of dependents being missed out in relation to this. Is there not a reasonable argument that the provision should be for the Department to make regulations on the motivation? The other issue is that, irrespective of whether you add in an extra category or two, we may, two or five years down the line, think that we are not really capturing such and such on that list. Rather than seeking to amend primary legislation, would you not be better having something that said that the Department "shall" make regulations?

Mrs Gillan: As far as we are concerned, the way in which we have drafted it does not require us to amend later down the line because we are not trying to be exhaustive. Our worry about taking a power to add to the list is whether it is a good use of resources to try to capture different motivations at regular intervals. It does not enhance anything for the pupil —

The Chairperson (Mr Weir): It may well be that some of those issues are things that, five or 10 years ago, would not necessarily have entered people's heads as being a potential motivation for that. These things change over time in that regard. I would have thought that it is a good argument that, if they were contained in regulations, which are secondary legislation, they could be changed or amended an awful lot more easily than being faced, in three years' time, with having to make a change to primary legislation to include something of that nature.

Mrs Gillan: That argument is precisely the reason why you do not even want to capture it all in legislation. Things change over time. We are conscious that there will be particular circumstances in particular schools.

The Chairperson (Mr Weir): Is that not an argument to have it in the code of practice?

Mrs Gillan: The guidance can develop what motivations might be and the fact that the school will have to look at all the circumstances of a case. That is why we wanted to include what we felt, in a legislative context, would be the absolute minimum. Again, that harks back to section 75 and the other statutory protections in place. There could be a list as long as our arm, and new ones would come. That is not a good use of legislation. The fact that —

The Chairperson (Mr Weir): Are there any other comments? I would like at least the option of an amendment that has the list of motivations by regulation so that there is a requirement on the Department to bring forward a regulation. That might mean that the Department brings forward the same list as it has or with that amendment. I am not convinced that having a definitive list — I appreciate that there is a "may" in it — is the best way of going forward with that.

Mrs Gillan: Does that mean that you do not want an inclusive list? Do you want an exhaustive list that we have to capture in regulation —

The Chairperson (Mr Weir): You would have in the legislation a requirement for the Department to bring forward regulations stipulating what motivations may include, or words to that effect. I am slightly drafting off the top of my head. I am not saying that the Committee will necessarily agree to that, but I would like at least that as an option. Personally speaking, that is a better way of doing it than having a list that, however much it talks about "may", will be seen as being exhaustive. That will run into difficulties at future points on that side of it.

Comments 3.26 to 3.30 refer to obligations to report and address mechanisms and the issuing of guidance by DE. Does the Department wish to comment?

Mr Boyd: Article 17 of the 2003 Order already places a statutory duty on schools to promote and safeguard the welfare of their pupils. We very much see it as being best practice and a logical extension of the safeguarding duty that schools would require their staff to report any bullying incident. We can look to recommend that as a requirement in a school's anti-bullying policy, but we propose to do that as a recommendation in the guidance. We do not think that it is necessary to include it in the Bill. If we were to include it in the Bill, it would almost require us to give consideration immediately to what monitoring and enforcement mechanisms we would put in place to support it; and there would be the issue of what is the merit of creating an additional statutory duty if we do not have any meaningful way of monitoring or enforcing it.

The Chairperson (Mr Weir): Have members any comments to make in relation to that? If not, are there any amendments to this section? Is there anything that you want to say on 3.27 or 3.28?

Mrs Gillan: Paragraph 3.27 is about using best practice from other jurisdictions. When we come to develop the guidance, we will look widely at best practice elsewhere. We see the duty to record the method of bullying as definitely to be elaborated and drawn out in the guidance as to what detail should be recorded. As to the duty for us to issue guidance, we have very clearly said that this is definitely part of the package. We will not fail to issue guidance, because it is in our interests for this to be done properly and for there to be consistency and for schools to be supported. So we want to have the guidance in place before we go live with the duties on schools.

The Chairperson (Mr Weir): At this stage, I would like to welcome some visitors to the Public Gallery. Just to inform you: we are going through the informal clause-by-clause process on the anti-bullying Bill. It is probably nearing completion in today's meeting. Those may be fatal last words, however. That concludes clause 3.

Mr Newton: Sorry, I have something to add.

The Chairperson (Mr Weir): Sorry, Robin.

Mr Newton: My point is tied in with the issue of guidance to boards of governors. Last week you said that you were —

Mrs Gillan: Training?

Mr Newton: Yes, you were not clear as to what exactly that training might be.

Mrs Gillan: We are no clearer this week either. We need to turn our minds to engaging with schools and boards of governors to see exactly what would be the most helpful type of training. Obviously, some of it could be incorporated into the general board of governors training, but it may be that we will want to develop something additional and bespoke for the purpose. We do not yet know how we want to roll that out. We are conscious that governors are volunteers and are limited to night-times, etc, so we will look at the most effective way of rolling out the training to boards of governors. That absolutely needs to go hand in hand with the written guidance.

Mr Newton: Just for clarity, do boards of governors get training at present?

Mrs Gillan: Yes. Training is given to all new governors in certain modules. There is also specific training for child protection, which is mandatory. So there are different elements of training.

Mr Newton: So, you would look at the current programme of training being beefed up, if you will excuse the expression, to match the —

Mrs Gillan: We would want to talk to the EA about that: whether there is space in the new governor training programme, or whether we would want to use some of that but also do some bespoke training. We are yet to go down the route of what exactly that would imply.

Mr Kennedy: Just on that point, how is it tracked at present? How do you make sure that members of boards of governors are appropriately trained and complying with the training that is potentially available but perhaps not?

Mrs Gillan: Because it is not my area, I am not 100% sure about the training that is rolled out. I know that, in relation to child protection, we ask for assurance from the Child Protection Support Service for the coverage of the child protection training. They proactively go out to schools to ensure that the training is covered on the child protection front.

Mr Kennedy: So, the anti-bullying training would come under that?

Mrs Gillan: It probably would not come under child protection, as such. We need to think about how we want to approach it. We will look to see how the child protection training is rolled out, because it is a specific duty, and we will also want to talk to the governor training folks to see how they do other elements of it. We are happy to look at it and, as you say, see what monitoring needs to be put in place and how we would do that to ensure that boards of governors are availing of it and that there is suitable coverage.

The Chairperson (Mr Weir): There is just one issue that I realise we have not touched on. In paragraph 3.30, the Children's Law Centre highlighted its concern over the lack of independence within school processes. I wonder whether you want to respond to that.

Mrs Gillan: I am not sure what happened yesterday with the Public Services Ombudsman Bill — I think that there was an Exceptional Further Consideration Stage — but my understanding is that it will provide an element of independence and redress of maladministration there. However, we do not intend to create a separate investigative, independent role that would allow us to look at the role of schools. The Public Services Ombudsman Bill will at least introduce a certain level of independence that people could avail themselves of, and schools will be brought under its remit.

The Chairperson (Mr Weir): OK. We move on to clause 4. Nobody has made any comments on this clause, so I just want to check whether members are seeking any amendments to it — even for the sake of it?

Mr Kennedy: Even for our visitors?

The Chairperson (Mr Weir): Even for our visitors. We will be writing to the 'Guinness Book of Records' because this is probably the most people the Education Committee has ever had in the Public Gallery. [Laughter.]

You are very welcome in that regard.

Clause 5 is the short title. Unusually, for a short title clause, two comments were received. The first is about a review mechanism, and the second suggests that the Bill should have a different title. Do you have any comments on those suggestions?

Mrs Gillan: Again, you would not naturally build a review mechanism into legislation. The Department will probably review the effectiveness of the operation once we have had adequate time and have good data on the effectiveness of our guidance and the duties. However, I do not think that it would be appropriate to tie into reviewing a Bill as such; that would be more of a policy role for the Department and, obviously, it is for the Committee to scrutinise us in that respect. We are happy with the title.

The Chairperson (Mr Weir): If it was changed, as UTU suggested, from "addressing" to "eradicating", would that possibly raise expectations?

Mr Boyd: Yes. At last week's session, we said that we do not expect the Bill to solve the problem of bullying in our schools. However, it will be a helpful step in addressing the problem, no more and no less, and the title reflects that.

The Chairperson (Mr Weir): Do members have any other comments?

Mr Kennedy: It would be ambitious to say that it was going to eradicate bullying. It might alleviate it, but I doubt very much whether it will eradicate it.

The Chairperson (Mr Weir): I just want to check whether members are seeking any amendment to clause 5.

I understand that our visitors in the Public Gallery are from Rotary International and you are here because you won a leadership competition; is that correct? Maybe you should be here and we should be there. [Laughter.]

I will not tempt the members because they may take up the offer.

There is a miscellaneous section in the clause-by-clause response table and there are 10 further comments that do not fit in with any particular clauses. The comments deal with, among other things, guidance, training for schools, arrangements for special schools, cyberbullying, anti-bullying research, consultation, duties in respect of young carers, policy alignment, and the consistency of mental-health provision in schools. Do you want to say anything about those issues?

Mrs Gillan: I will begin with the issue of legal guidance in respect of out-of-hours bullying. Again, we have discussed the issue of providing guidance for schools on what they can legally and reasonably be expected to do. Out-of-hours bullying touches on cyberbullying and the Committee's amendment, but we want to produce case studies on some of those issues so that we can provide as much clarity as possible for schools, within what is reasonable.

As we have said before, we are looking at training and guidance, so we do not envisage enacting the Bill until guidance and suitable training is in place; that would be unreasonable for boards of governors.

The Chairperson (Mr Weir): We have possibly just broken the second record of the day. After having the maximum number of people in the Public Gallery, we now have the maximum number leaving an Education Committee meeting at any one time. [Laughter.]

Mrs Gillan: We will not take it personally.

Mr Kennedy: Clearly, it was a very moving speech. [Laughter.]

Mrs Gillan: I will have to work on my presentation skills. [Laughter.]

With regard to comments 6.3 to 6.5, we are not going to have a separate consultation. We feel that we dealt with the issue of special schools, and SEN pupils generally, last week, and the flexibility that there is for schools to adapt their policies and measures according to their pupils. We have asked the forum to develop the cyberbullying guidance this year, and our guidance will look more widely at cyberbullying.

With regard to anti-bullying research, the Department will want to turn its mind to looking at the effectiveness of our policies and look at what research we would want to do on addressing their effectiveness. We would look at the full range of schools and at the nature of the pupils in them.

Comment 6.6 refers to consulting parents. Again, that is about trying to clarify the role of parents. We are looking at guidance or information for parents. Moreover, schools will, in the measures and policies — on which they will consult with parents — be able to set what the relationship should be between school and parent.

Mr Boyd: We envisage four separate guidance documents or leaflets arising from this. There will be a detailed one for schools; one for governors, teasing out their new duties and responsibilities; one for parents, emphasising the boundaries and where parental responsibility kicks in; and one in child-friendly language for pupils on how they should react and whom they should approach when they encounter problems with bullying.

Mr Hazzard: A connected issue in my mind is relationships and sexuality education (RSE). The Department has guidelines that every school should have an up-to-date policy on RSE. However, if not half, certainly a large proportion of schools do not do that. I see a link between how a school tackles, say, homophobic bullying and a good, up-to-date policy on RSE. Will the Department look at that after this Bill? If it is not to be part of the Addressing Bullying in Schools Bill, it is certainly consequent to the passing of it. We are looking at research and different ways of tackling bullying. Will we be looking at the need, perhaps in legislation, to ensure that every school has an up-to-date RSE policy?

Mrs Gillan: On the curriculum side, I am not that certain, but my understanding of RSE is that some folks will want it tied down in legislation; equally, a vocal body will not want it tied down in legislation. Therein lies the difficulty for the Minister.

Where we see the benefit of this legislation and the monitoring of incidents is that if a school found that there was an issue, we would expect to see mechanisms put in place to address it. Whether that is through the teaching of RSE, if it has not previously been done, or through the I Matter-type work, I am not sure. As far as the Department is concerned, the guidance and curriculum are there, but legislating further has, as I understand it, been a challenge.

Mr Hazzard: Difficult.

Mrs Gillan: Yes.

Mr Newton: Maybe Caroline has not reached 6.10 and the comment from Erasmus+ Connections, where a group of young people, under the European support programme, looked at mental health issues for pupils and found a great deal of variation, school by school, in how those were addressed.

Mrs Gillan: That is possibly under a slightly different arena within my directorate, the emotional health and well-being side of things. We have our school counselling service, but, more than that, you want to get into the preventative arena rather than relying purely on counselling. We have been looking at our I Matter leaflets and supports, which encourage good mental health and which signpost pupils if they have problems. The Department will be looking at ways of rolling out that feeling of positive mental health and positive attitudes to pupils in schools as part of the leadership programme in place for teachers. There was a pilot done some time ago with the Public Health Agency (PHA) that produced quite good results. However, we wanted to mainstream that into some of the training that is already going on for teachers, because we found that, if the leadership and the principal of a school fully bought into the approach of positive mental health and respecting others, that was the best way to get it filtered through a school. That is not for this Bill, but I will absolutely take it on board when we look at our other area of work. If there is a report that we could look at, we would be more than happy to do that.

Mr Newton: Chair, Caroline is saying that if the report was available to her she would look at it: could we ensure that the report goes to her?

The Chairperson (Mr Weir): Yes. I am sure that was very wise.

Mrs Gillan: He does not know what he has agreed to, but that is fine.

Mr Newton: You agreed to that, Chair.

The Committee Clerk: It has been forwarded to the Department, and commentary has been sought. You may have replied already.

Mrs Gillan: Has it? I may have. Sorry.

The Chairperson (Mr Weir): It is better to say "may" than "shall". [Laughter.]

Mrs Gillan: It could well have been sent. We are happy to look at it if we have not done so already.

The Chairperson (Mr Weir): The only amendments that we have missed out are those at 6.8 and 6.9 in the table from NICCY and the Human Rights Commission.

Mrs Gillan: The creation of a statutory duty on educational bodies to support young and student carers would be outwith the remit of the Addressing Bullying in Schools Bill. It is something that we want to look at separately.

With regard to 6.9, which suggests that other policies should be brought into line with the Bill, we are already looking at the child protection guidance, namely DENI circular 99/10. We are looking to update that, and there will be a good opportunity to do so in light of the new duties. It already touches on bullying, so it is useful that that review is going on at the same time.

The Chairperson (Mr Weir): If there are no other amendments to that bit of the Bill and members do not have amendments that they want to bring forward that have not been touched on, I thank the officials for being with us.