Official Report: Minutes of Evidence

The Chairperson (Ms McLaughlin): I welcome to the meeting Chris Lyttle, the Bill sponsor. Chris and I work in other areas to do with childcare as well. He is passionate about fair employment, equality and all of that. I look forward to hearing your thoughts on the Bill as it progresses. I advise you that the session is being recorded by Hansard. I will hand over to you.

Mr Chris Lyttle (Northern Ireland Assembly): Thank you very much, Chairperson. I realise that you have had a busy schedule today, so I will do my best to be as concise as possible. I will start by thanking you and all the members of the Executive Office Committee for the invitation to meet you and for the proactive approach that you are taking to the Fair Employment (School Teachers) Bill that I have introduced in the Assembly and which, I still hope, can be advanced to the Executive Office Committee Stage as soon as possible.

I will break my concise remarks into five sections: the proposal; the background to the proposal; a summary of the consultation responses; the current context; and the conclusion and final proposal. I will make only a few remarks on each.

The proposal is the Fair Employment (School Teachers) Bill, which would remove the exclusion of teachers from the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) and afford teachers the same legal protection from discrimination on the grounds of religious belief in recruitment as other employees.

The background to the proposal is that the Fair Employment (Northern Ireland) Act was introduced in 1976. It outlawed discrimination in employment on the grounds of religious belief or political opinion, but section 37 of the Act excepted:

The Act was amended and supplemented by the Fair Employment (Northern Ireland) Act 1989, which introduced employment monitoring, but the exception of teachers remained in place. The Fair Employment and Treatment (Northern Ireland) Order 1998 consolidated the earlier Acts, continuing the prohibition of discrimination in the field of employment, but Part VIII, article 71, paragraph 1 stated:

In 2003, that provision was narrowed, so it applies only to recruitment and promotion of teachers to meet the requirements of an EU directive on equal treatment in employment and occupation. The consequence of the teacher exception from FETO is that schools are legally permitted to use religious belief as grounds on which to discriminate between candidates for teaching posts. Whilst almost all workers can rely on legislation to protect them from discrimination on the grounds of their faith, that protection is denied to teachers.

On background and research, the UNESCO Centre at Ulster University published a paper entitled 'Employment Mobility of Teachers and the FETO Exception' as part of its transforming education programme. Notably, the report concludes:

The Equality Commission:

That recommendation, however, was made in 2004. The Northern Ireland Human Rights Commission stated that it:

I will summarise the consultation responses. I conducted a public consultation between April and June 2021, and the responses indicated significant support for the proposal. When asked:

94·3% of respondents said, "Yes" and 5·9% said, "No". When asked:

93·8% said, "Yes" and 6·2% said, "No". Notable feedback included:

There is other feedback that I would be glad to share with the Committee.

On engagement with key stakeholders, I have engaged directly with teaching unions, all of which now seem to support the proposal. NASUWT and NAHT have supported the proposal publicly. I engaged with the Council for Catholic Maintained Schools (CCMS), which, notably, sought assurance that the Catholic ethos could be respected and maintained in any repeal of article 71 of FETO. The CCMS also suggested that any legislative change may be more appropriate at secondary level and that secondary leadership could be required to have the certificate of religious education. I engaged with the Transferor Representatives' Council (TRC), which reiterated its support for equality of opportunity in teacher recruitment and its opposition to unfair discrimination on the grounds of religion or belief. The TRC gave its commitment to engage further with the legislation at the appropriate stages.

On current context, on 17 May 2021, the Assembly debated and unanimously supported a motion that stated:

All Members spoke in support of that motion. Again, I can provide the Committee with the record of that.

I have conducted public consultation, engaged with key stakeholders and considered the current context. I am convinced that there is broad political and public support for the changes that are proposed in the Bill. It is untenable that teachers are excluded from such legal protections as are afforded to almost all other employees. It is unacceptable for yet another Assembly mandate to pass without legislative action to remedy the anachronistic exclusion of teachers from fair employment protection.

The Chairperson (Ms McLaughlin): Thank you, Chris, for that succinct presentation. My party and I are sympathetic to that change of law. It really is an outdated concept. The world has moved on. Absolutely no one should be excluded from a job because of their religious beliefs. I say that at the outset. However, I am concerned about being able to get the Bill through in this mandate. We have just a few weeks to go before the end of the mandate, but we are only just getting into the nitty-gritty of the Bill. Can you address that concern?

Mr Lyttle: I understand that, Chair. It is a fair point to make. It would be remiss of me not to acknowledge that. I have given evidence to the Committee on Procedures as well. We submitted the final proposal for the Bill on the deadline in June. I do not know what the internal reasons were, but, regrettably, it was almost five months before the next stage of the Bill, in terms of drafting instructions, took place. We are where we are, and that is what it is.

You are right: full completion of the Bill may be extremely challenging, but there is an opportunity for the Executive Office Committee, if your schedule and forward work programme allow, to take evidence on the Bill at a Committee Stage or otherwise, depending on whether the Business Committee is able to schedule a Second Stage, which will allow it to go to Committee Stage. If the Executive Office Committee thinks that this is an urgent enough issue, you could write to the Business Committee and ask for the early scheduling of the Second Stage to permit debate of the principles of the Bill and, possibly, a Committee Stage, as you would have a much better opportunity to publicly engage with some of the key stakeholders.

We can ask ministerial questions, we can have Assembly motions and people can offer their support and commitment to engage further on an issue, but there is nothing like legislation to focus the minds of MLAs, parties and key stakeholders on what they are willing to support in legislative change. It would be a really useful contribution of this Assembly mandate to have a Committee Stage of the Bill. Obviously, an MLA could, if necessary, reintroduce it in the next mandate, with a substantive piece of work already having taken place. It will not be me, unfortunately.

The Chairperson (Ms McLaughlin): Yes. That is what I was going to say, Chris; it is well known that you are completing your service as a politician and a public rep at the end of the mandate. If the Bill were not completed, it would be incumbent on another rep or, indeed, a Minister to pick it up and run with it.

I want to talk through my concern with other members. We have already, in advance, done a call for evidence, which closes on 7 March. It is tight, Chris. It is beyond tight, really.

Mr Lyttle: It is.

The Chairperson (Ms McLaughlin): My concern is that, if we do the work — we want to do the work — it closes off when we go in to purdah, and we would have to wait to see whether it is brought back. The new Committee — whoever is sitting around this table in June this year — will want to hear new evidence. They will not say, "The last Committee heard this or did that, blah, blah, blah"; they will say, "Well, I didn't hear that. I wasn't here". There will be duplication of some of the work. I am being really challenging towards you, Chris —

Mr Lyttle: That is entirely fair.

The Chairperson (Ms McLaughlin): — because of the reality that we face. It feels as though we are bringing down a plane to land but have run out of runway and, with all the goodwill in the world, cannot get it on the tarmac.

Mr Lyttle: I am fairly confident that another MLA will progress the Bill in the new mandate, if that is what is ultimately necessary. I do not think that any of the work would be lost or duplicated. There is still an opportunity to do that. It is still a positive for me to plant a tree in the shade of which I will not sit but, hopefully, others will.

The real and continuing motive for me is the number of times — I am trying to be super positive here today; I do not want to be critical — that the Executive Office has put a block on it. How many responses to questions for oral or written answer have we had that stated, "This is being reviewed" or "I'm engaging with the Department of Education"? It is perennial. I have done the best that I can and worked as hard as I can. I thank and acknowledge research officer Connie Egan for the huge amount of work that has gone into the Bill. Like I said, there is not much point in reflecting on what exactly happened to cause a five-month delay after the final proposal; we are where we are.

In answer to your question, I think that it is well worth using every day and every week remaining in the mandate to advance the Bill as far as possible. I hope that the legislative drafting is concise and effective and that there do not need to be too many changes to the legislation. I am happy to discuss that and to engage formally or informally with the Committee after today. Obviously, the production of the Bill allows all the key stakeholders who responded previously to its principles to see legislation on which they can get into the nitty-gritty. I do not think that that work would be lost or duplicated. It would be a legacy to leave, if nothing else, for another MLA and Committee to progress. There is increasing frustration among the public and teachers about that out-of-order exclusion from fair employment that so many other employees in our society do not face.

The Chairperson (Ms McLaughlin): You are right. It also detracts from the recruitment processes in which schools are engaged and the difficulties that some schools have in getting skilled staff. Some staff are not being recruited on the basis of their religion whilst they tick every other box. It is shocking. I was trying to explain that to someone who is not from Northern Ireland, and they said, "In schools, you what?". It is archaic.

Mr Lyttle: Chair, to be fair to the education sector, the feedback that I have received consistently is that discrimination does not occur. The logic of that, then, is this: let us get the legislation in place to make sure that that is the case.

The Chairperson (Ms McLaughlin): I have another quick question. How have the teacher training colleges responded to your proposals?

Mr Lyttle: Positively. As I said, I engaged with CCMS and the Transferor Representatives' Council, which covers a wide range of sectors and bodies. Feedback was given. CCMS, in particular, raised the position that perhaps secondary level would be more appropriate first, followed by primary level. The Transferor Representatives' Council reiterated its position that it is against discrimination and said that it was willing to engage on the legislation once it had been proposed. That is why I am keen for a Committee Stage to be permitted: so that that level of engagement can happen in an on-the-record, public way.

The Chairperson (Ms McLaughlin): You mentioned that CCMS had indicated that the exception may be removed in secondary schools first. How do you feel about the phasing out of the exception?

Mr Lyttle: I considered that. I made sure that the public consultation allowed for the question to be asked on primary schools and secondary schools separately. The overwhelming response supported the removal of the exception in both primary and secondary schools. That is the type of amendment that could be considered after substantive engagement on the Bill with those representatives. I thought that it was important to start from the point of a comprehensive removal of the exception.

Mr Sheehan: Thanks, Chris, for bringing the Bill forward. All teachers should enjoy the same legislative protection as every other worker. I think that the parties in the Assembly are united around that now. I will not go into whether the argument for the need to protect the ethos in particular sectors was a strong one in the past; it is certainly not the case now. Whatever ethos schools want, it should not be built around exceptions from fair employment legislation.

I understand the time pressures now; in fact, today, I got an email from the Bill Office about my tackling holiday hunger Bill, which has been in the system there for I do not know how long. You will be aware that it was Karen Mullan who first brought it forward. In that email, the Bill Office reminded me that the convention in the Assembly is that, after the introduction of a Bill, there is a period of 30 days until its Second Stage. I note the use of the term "convention" rather than "rule", so maybe there can be flexibility around that.

I would certainly welcome the opportunity to discuss your Bill and to scrutinise it in Committee. It is a short Bill, as you said. You should push to get as much time as possible to deal with it. I have no real questions for you; I think that Sinead covered all the bases in her questions. Thanks again for bringing the Bill forward.

Mr Lyttle: Thanks, Pat.

Mr Stewart: Chris, thanks very much for coming along today. I really appreciate you taking the time and putting the Bill together. It is, as you said, mercifully short, but significantly impactful. I know that you have championed the cause for some time, as have I, at Question Time in the Chamber and in written submissions.

The questions that keep being asked are these: who is against equality, and where is the blockage coming from? We never quite seem to get the answers. That is frustrating. It must be frustrating for you that you have had to bring the Bill forward and that TEO could not just lead on something that seems so simple but could effect so much change. It is also frustrating that it could have been done in 2016. Two of my colleagues, Sandra Overend and Danny Kennedy, tabled amendments to the Employment Bill in 2016 that would have made that change. We could have been sitting, five years down the line, with that law in place. Sadly, a petition of concern was launched against them. I was never sure why that happened.

Recently, I was approached by the chairperson of a board of governors. What impact do you think the Bill would have in terms of essential or desirable criteria for teaching posts that are advertised? The chairperson raised with me the situation where a school in a particular sector had approached them for a reference for a teacher who had applied for a job in that school. One of the questions was about how committed the applicant was to promoting the religious ethos of the school — a question that the governors could not, in all honesty, answer. If article 71 goes, would such questions still be lawful?

Mr Lyttle: You may need a legal expert with more experience than me to answer that.

I will respond to a couple of your points, John. It is important that we acknowledge the work that you have done on the issue and that, as you said, Sandra Overend and Danny Kennedy undertook. A lot of work has been done and attempts have been made to remove the exception of teachers from fair employment law. That is further evidence of why progressing the Bill to Committee Stage is worthwhile.

On the particular case that you raised, my understanding is that, by law, all schools in Northern Ireland are non-denominationally Christian. Like you and the board of governors that raised that issue, I am not entirely sure what that criterion was getting at, and, as you said, people have questioned its appropriateness and legality. It probably shines a light on the need for further improvements in recruitment practice. That is why I brought forward the Bill: to enhance that.

Some of the feedback that I received from some of the sectors raised the matter of welcoming statements. When you advertise employment, welcoming applications from particular backgrounds is obviously legally permitted. Potentially, that is one way of lawfully encouraging applications.

I can see why someone would seek expert legal advice on specific criteria, the like of which you talked about. I am not qualified to give that. [Laughter.]

Mr Stewart: No, neither am I. However, it raises that air of ambiguity and the concerns that governors probably have. That will be an interesting point to come out of the Bill process.

I do not have much to add, except to thank you again, Chris, and to support the call for early scheduling of the Bill. I am concerned about the time that we have left to legislate in the current mandate, and, as time goes by and we move into another mandate, other things could crop up. I have no doubt that somebody else will pick up the Bill, if you cannot get it through in the current mandate, but we should all do what we can to get it through. Given how simple the Bill is and how much we could probably streamline it, it would be such a shame if we could not get it through in the current mandate. I am happy to propose that or to play any part in the Committee to make sure that that happens. Thank you, again, for coming along today.

Mr Lyttle: Thanks, John.

Mr Lunn: Thanks, Chris. Thanks, Connie. It is good to see you again.

Sometimes, a single-line Bill produces complicated discussion. This Bill may well do that, and it is right that we should spend some time on it as a Committee.

First, how many responses did you get to the consultation?

Mr Lyttle: We had approximately 500 responses to the consultation. As I said, a good —.

Mr Lunn: percentages. I just wonder what breadth it had.

Mr Lyttle: There were 500 responses. I also had direct engagement with a wide range of organisations that I mentioned, and people have continued to meet me and to follow up with me, after the consultation ended. There is interest in the issue, particularly amongst teachers — they are the most affected by the issue, obviously — but also amongst the representative bodies, the employing authorities and the public. That gives you a flavour of the response.

Mr Lunn: When you responded to John, you used a phrase that caught my ear. You said:

Is that accurate? Is that what you meant to say?

Mr Lyttle: Yes. Maybe not all schools but the majority of schools or their status are non-denominationally Christian, yes.

Mr Lunn: Would you say that about the Catholic maintained sector?

Mr Lyttle: That is the legal position, yes.

Mr Lunn: I had never heard that phrase before, and I was your predecessor as the education spokesperson for the Alliance Party. I never came across that phrase. It does not matter; I am not making a big issue of it, but it is fair to say that the small level of opposition to your Bill is coming from CCMS. You might think about its request or an amendment on the difference between primary and secondary education in the maintained sector. I am sure that you know as well as I do that the maintained sector, the Catholic Church and the Catholic population treasure their ethos or perceived ethos in the Catholic schools. If such an amendment came forward — that this would apply only to secondary schools — would you be prepared to consider it?

Mr Lyttle: Yes, any reasonable amendments should be considered. It is similar to the argument that I made earlier: that is why legislation is so important. It gets you down to what is deliverable or not. However, a number of members and I have referred to the fact that the position of the political parties appears, increasingly, to be the removal of the exception for all teachers. The position of CCMS ought to be properly considered and properly engaged with, but it seems that there is increasing political and public support, particularly amongst teachers, for the exception to be removed for all teachers.

Mr Lunn: I am not taking a stance on this; I am just asking you the questions. Where does the certificate of religious education come into this?

Mr Lyttle: The certificate of religious education is required, particularly in relation to primary level. CCMS raised that issue. It sought assurances that that would not be affected at primary level. Obviously, that is something that you will want to scrutinise at Committee Stage. It is considered to be the preparation — the qualification — to support the delivery of the ethos and approaches of CCMS at primary level. I think that that is why we are seeing the political and public support for the removal of the exception for all teachers. The certificate of religious education is regarded as covering that approach at Catholic maintained primary level. A fair amount of the response to the consultation suggested that the appropriateness or comprehensiveness of the certificate of religious education ought to be considered and reviewed as well, but I did not think that it was appropriate for the Bill to consider that. Members have referred to the fact that efforts have been made to ensure that this is a fairly simple and straightforward Bill. It has four clauses, including the short title.

Mr Lunn: The Chair asked about the reaction that you got from the teacher training colleges. I will give you the opportunity to state the policy: I will certainly agree with it. In the longer term, would it be a good step forward in this to have a unified system of teacher training, rather than separate colleges, because, effectively, all teachers would then come out of it the same?

Mr Lyttle: Obviously, there is an existing independent review of initial teacher training that makes specific recommendations in line with what you have suggested. I have deliberately endeavoured to keep the focus of this work and proposal on fair employment. That is why it has engaged the Executive Office and the Executive Office Committee. There is a wide range of educational issues, but it would take more than this Bill to adequately address them.

Mr Lunn: I thought I sounded like Stephen Farry. [Laughter.]

Thanks, Chris.

Mr Lyttle: Thanks, Trevor.

The Chairperson (Ms McLaughlin): That was very well politically deflected, Chris. [Laughter.]

Thank you very much for coming before the Committee as the Bill sponsor. Members will engage when you leave, but, suffice it to say, we hear you, and we know where you are going with the Bill. We like your destination, and we will do what we can in the short time that we have left.

Mr Lyttle: I sincerely thank you for the time that you have given me today. For reasons beyond my control, the timescales have become extremely challenging, but I encourage you to support the consideration of an early Second Stage, via the Business Committee, so that a Committee Stage can be granted. There is increasingly widespread consensus around what is possible and what can be done, and a Committee Stage would give key stakeholders the opportunity to put their position on the public record.

Thanks to you and members for giving us the time today. I appreciate it.

The Chairperson (Ms McLaughlin): Thanks to your colleague for coming along. Thank you.