Official Report: Minutes of Evidence

The Chairperson (Ms McLaughlin): I welcome to the meeting Mr Mark Bailey, who is director of education workforce development in the Department of Education, and Ms Alison Chambers, director of promoting collaboration and tackling disadvantage in the Department of Education. I advise you both that the session is being recorded by Hansard and the video of the meeting will be available on the Committee web page. Mark and Alison, I invite you to brief members and give us an update on where you stand with the Bill.

We cannot hear you. We will give you a few minutes to deal with the technical difficulties.

Mr Mark Bailey (Department of Education): Apologies for the technical difficulties, Chair. Thank you for the invitation to speak with you today, albeit belatedly, on the Fair Employment (School Teachers) Bill. I am the director of workforce in the Department of Education with responsibility for workforce matters across the sector and, in particular, teachers' terms and conditions. I am joined by my colleague Alison Chambers, who is the director with responsibility for promoting collaboration and tackling disadvantage in the Department.

We are here on behalf of the Minister and represent the management side of the education sector. The management side represents the five main education sectors comprising employing authorities and sectoral bodies. Those are: the Education Authority (EA); the Council for Catholic Maintained Schools (CCMS); the Northern Ireland Council for Integrated Education (NICIE); Comhairle na Gaelscolaíochta (CnaG), representing the Irish-medium sector; and the Governing Bodies Association (GBA).

With your permission, I plan to say a short few words about the Department and the wider education sector's position on the Bill. At the outset, I will say that the Minister and therefore the Department of Education is committed to delivering equality to all school sectors. That includes consideration of an end to article 71 exemption from the Fair Employment and Treatment Order (FETO).

Any amendment of the article 71 exemption, which has been in place for decades, clearly impacts on all education sectors — maintained, controlled, integrated, Irish language and voluntary grammar. The consensus in the education sector is one of support for the repeal of the FETO exemption, but we agree that we would have preferred more time for proper consultation and engagement to allow us to work through the practical implications of a smooth and successful removal of what has been a long-standing arrangement.

The Education Minister met Chris Lyttle MLA in late June 2021 to discuss his private Member's Bill. At that meeting, it was recognised that, while legislative consideration may be appropriate, timescales and the legislative workload in the current mandate might prove challenging. It was noted and agreed that the opportunity for full and detailed consideration would be important to the education sector. The Minister continued to emphasise the need for full and open consultation on the issue. We heard nothing from then until 17 January this year, when the Bill was introduced in the Assembly, to the surprise of TEO and DE officials and our Minister. As you know, that was followed by a call for views before the Bill had its Second Reading. We are not clear who in the education sector was asked for their views, but it was always our understanding that it was a preliminary call for views and that the Committee Stage would provide the opportunity for full and detailed consideration, as is normal practice. It has also been reported to us that, when giving evidence, the sectoral bodies understood that it was a preliminary discussion and that there would be further opportunities to brief the Committee.

On 15 February, the Speaker wrote to MLAs to advise that this private Member's Bill, among others, would not complete its passage in the current mandate. However, on 2 March, we were advised that your Committee had taken the decision to progress the Bill, with the Consideration, Further Consideration and Final Stages to be progressed in the week commencing 21 March, although I understand that the Consideration Stage is now to happen sooner than that. You will be aware that the Minister then wrote to you on 4 March to raise her concerns about the speed of implementation without sufficient time being given for consultation. As I have outlined, that has been echoed by the managing authorities and sectoral bodies.

In giving evidence to the Committee, a number of organisations have raised issues that will need full consideration to determine the most appropriate approach and to understand the practical implications for a smooth implementation. I will briefly highlight a number of those issues.

During its oral evidence with you last month, the Equality Commission noted that, when the exemption is removed, schools, like other employers, will no longer be able to lawfully discriminate on the grounds of religious belief or political opinion in the appointment of teachers, either in the initial recruitment or in the case of promotion. You will be aware that the removal of the exemption will place statutory duties on education employers. Those include registration with the Equality Commission; the monitoring of the religious composition of the workforce; regular reviews of recruitment, training and promotion practices; and, where appropriate, an affirmative action plan. In practical terms, each school in the sector is an individual employer. The Equality Commission gave evidence that all schools with more than 10 employees will be required to monitor the community background of their teaching staff, carry out article 55 reviews of their teaching workforce and review their employment policies and practices in relation to the employment of teachers. The commission suggested consideration of a staged approach to implementation that would potentially allow for anti-discrimination provisions to come into force when the mechanisms for monitoring are put in place.

CCMS, who also gave evidence, advised that, when they met you on 23 February, there was no expectation that the Bill would complete during the current mandate. Had they known that it would, they would have requested further engagement with you to discuss issues of concern regarding the implementation process, including the use of the certificate in religious education, which we understand to be outside the scope of the Bill. I understand that the Transferor Representatives' Council (TRC) noted the potential risk of discrimination cases if the removal of the exemption were not managed properly.

The introduction of the Bill has the potential to be a significant cultural change for many in the education sector, and it poses a real logistical challenge if it is not managed properly and effectively across the system. To give one example, there are 20,000 teachers in Northern Ireland. Their employers do not hold information on their community backgrounds but will be required to capture that data to allow them to adhere to the requirements of the Equality Commission. It will be a significant manual exercise for them to prepare and communicate to their staff, to manage the response and then to make a determination where responses are not forthcoming. We fully recognise that this is a common requirement. However, given the long-standing exemption and the bulk implementation that would be required, with significant numbers of staff and the complex nature of the education sector with multiple employing authorities and different reporting arrangements, time is required to prepare staff for the change to ensure that we are in a position to report to the commission accurately and consistently.

Notwithstanding the issues that I have referred to in representing stakeholders' views, the Department and the management side of the education sector support the repeal of the FETO exemption. We also recognise the momentum that the Bill has generated. For that reason, we ask the Committee to include an amendment to provide for the commencement period to be extended to 30 months to allow for more time to consider the practical implications, raise awareness, prepare the way for the cultural change, amend existing processes and establish new ones where necessary. We do not believe that there is any question of the outcome of an end to the article 71 FETO exemption. However, on behalf of the Minister and the wider education sector, we are here to articulate concerns about the timescales proposed and to ask for an extended commencement period of 30 months to allow for a resolution not only of the issues that I have just raised or that others have raised but for those that we have not yet had the opportunity to fully consider and identify.

The Chairperson (Ms McLaughlin): Thank you very much, Mark, for that and for being so frank.

Correspondence was sent to the Department on 31 January 2022 for comment on the Bill. Why has it taken you so long — until 4 March — to provide the letter that you provided?

Mr Bailey: It was always the understanding from our perspective that the Committee Stage was when we would engage fully in the process in terms of the consultation that was required. You are absolutely right in saying that a letter was sent on 31 January, but it was not specific in asking for the Minister's view; it was just informing her of a call for views. That aside, the key thing was that we always expected the Committee Stage, as is normal practice, to be the main consultation period. That was when we and a number of other employing and sectoral bodies were planning to engage in the process rather than the initial call for views, which, we thought, was a preliminary process.

The Chairperson (Ms McLaughlin): Mark, you will know as well as I do — much better than I do, in fact — that the removal of the exemption has been debated for many years, with increasing cross-party support for its removal. What has the Department been doing to look into the potential consequences of that removal and how to manage it?

You say that you require more time for implementation. We are not creating a new wheel. This happens across society in many organisations. The structures are in place to put this into place. Where do you see the real substantial difficulties?

Mr Bailey: I recently consulted all the management side, as I said — last week and yesterday — in forming this response. This has all happened very quickly in the last few days in terms of the process accelerating in this mandate.

There are significant issues that the management side is concerned about that will take time. For example, I have no idea at this stage what due diligence has been taken forward. As you know, this is Executive Office legislation, albeit impacting on the education sector. We need time to understand what due diligence has taken place with regard to legal advice or consequential amendments.

I outlined some of the cultural issues. Those will be significant because of the length of time that the exemption has been in place and the complexity of the education system. There are different processes in different sectors, be they recruitment processes, reporting processes or data gathering. We would suddenly have over 20,000 teachers for whom we would need to implement a process. There is a series of steps that we would need to work through properly to ensure that our reporting is consistent and accurate and to ensure that we comply properly with the requirements.

There are other things, Chair, if I may mention them. We have not had time to fully understand what costs are likely to be involved. Our management side colleagues have raised the issue that there are implications that they have not had time to think through. They need to take more time to do that. It is the unknown issues that cause us particular concern. We recognise that this will happen, however, and we seek an extension of the time before it will take effect to 30 months, because we believe that that is what we require to make sure that it is done properly rather than being rushed through.

The Chairperson (Ms McLaughlin): I suppose that it is for all of those reasons that the sponsor has included in the Bill that it will be 12 months before it is implemented. It is so that the sector can get itself organised to implement it.

The Catholic schools sector told the Committee that it does not invoke the FETO exemption to preserve its ethos. It was very supportive of the Bill. In all of the evidence that we took, no substantive concerns were expressed to us. There was no major pushback in relation to time. Issues relating to phasing were raised by some consultees, but nothing major was raised with the Committee, so we were happy to progress at pace to get the Bill through the process in the short time left in the mandate. We were happy to do that.

As you said, Mark, we know what the landing space is: that article will be removed at some point. My understanding of what you have told us is that the Department's concern is about the time available to prepare for that exemption process.

I will leave it at that and open the floor to other members who may wish to explore other avenues with you.

Mr Stewart: Thanks to both of you for the information and presentation. I agree with the Chair: I am a little bit frustrated by this. We, as a Committee, have tried to do all that we can to expedite the process, given how narrow the legislation is and the fact that it has overwhelming cross-party support and that the overwhelming majority of feedback on any consultations were in favour of it.

Due to my line dropping out, I missed some of what you said about where, you felt, consultation was lacking. I would be interested to hear — apologies if I missed it — where, you think, those gaps are. I assume that you are saying, basically, that, if the Department of Education gets its wish, the call from the Committee and the sponsor to expedite the process so that the Bill can pass in this mandate cannot be fulfilled.

I will add a third bit. I appreciate that you say that changes need to be introduced and time needs to be bedded in, but no sector that I can imagine would require 30 months. I do not accept that; I find it utterly over the top. How on earth could it take nearly three years to get the ducks in line to ensure that this anomaly is taken out and that corrections are made to processes? No organisation in the private sector or any sector should require that long. You will have to set it out for me, step by step, why that needs to be the case, because 30 months sounds totally outrageous. I am really keen to get a flavour of where that figure has been plucked from.

Mr Bailey: I will comment on those points. You suggested that we said that this could not happen: that is not the case. I suggest that it can happen and that the Bill can go through. We are looking for an extension in the time to allow us to prepare for it. I will explain some of the rationale for that in a moment.

The education sector has come a long way. All of the parties say that this is the right thing to do. That has not been the case until recently. The Bill has certainly taken the education sector parties in the same direction of travel. However, as recently as yesterday, when I met all the employing authorities and sectoral bodies, they expressed concern about the 12-month timescale in the Bill. There was never an expectation — CCMS confirmed it to me yesterday — that the Bill would go through in this mandate. They are absolutely in agreement with the direction of travel, but the education system is complex. There are five sectors, and there are historical arrangements in terms of how they are managed, run and processed. I accept that the Equality Commission's requirements are the same for every other employer, but we are talking about 20,000 teachers, all in one go, across five sectors that have different reporting mechanisms. We would need to manage that and ensure that we deal with all of the issues. We genuinely want to do it properly. We want to bring the staff with us, because it will be a cultural change.

Alison, do you want to comment?

Ms Alison Chambers (Department of Education): We need to look at the communications strategy around it. There is broad support for the exemption being removed, as you said, and we fully concur with that. However, to land it in the system, we need to look at communications and systems. Will data gathering be done manually or through some kind of database? Does something need to be procured? What will the impact be on various policy initiatives? Can things be changed to help it to land more effectively in the system and encourage and give confidence to teachers to start to look for employment in other sectors that they might not previously have considered? As Mark said, to do it justice and to make sure that we get it right and it is not rushed, we would prefer that the time be extended a little to allow us to look at all of the outworkings of the Bill. We certainly support the Committee in taking the Bill through in the time that it is taking.

Mr Stewart: Just to get my head around that, if it were to happen in this mandate, the sectors would be concerned that the 12-month period is not long enough for them to prepare. Do you believe that there is time left in the mandate, which will end in three weeks' time, to do what needs to be done to get the legislation passed? We are all conscious that this could have been done in 2015, 2016 or 2017, but time has marched on. We do not know where we will be in the next mandate. It looks like a simple change that we could have implemented. Is there time left to do that? I think that you are saying that, if it is passed in this mandate, it has to be amended to give it time to bed in.

Mr Bailey: That is absolutely our view. That would allow it to go through in this mandate. Our request is that the Committee proposes an amendment to extend the period before commencement to 30 months. That would put it in to law, but we would have time to get ready for it in order to do it properly in 30 months' time, when it becomes law.

Mr Stewart: What about the additional consultation that, you said, has not happened? There is no opportunity in this mandate to do that. My belief is that we have consulted widely enough. I have heard no one raising concerns about that. There has been ample opportunity through the Committee's reporting mechanism and the sponsor's consultation. I have seen no evidence of any major concern. Are you saying that further consultation would still have to happen, or do you have concerns because it did not happen?

Mr Bailey: No. I am saying that, in the absence of what we consider to be full and proper consultation, the extension would resolve that for us, because we would have a longer time to do what we need to do in order to do it correctly within that period.

Mr Stewart: No problem. I appreciate your time and your feedback.

Mr Lunn: John asked the questions that I wanted to ask. For clarity, are you satisfied with the level of consultation and scrutiny that has happened so far? Is the problem only about the date of the legislation coming into effect?

Mr Bailey: From a departmental perspective and from talking to the management side, there is not a feeling that there has been sufficient consultation.

Mr Lunn: There is or there is not?

Mr Bailey: No, there is not a feeling that there was sufficient consultation. However, because of that, as a pragmatic way of moving forwards, we suggest that the amendment to the Bill would allow us to use that period to make sure that we do it right. That would effectively take account of our view that there was insufficient consultation.

Mr Lunn: If we manage to get the Bill passed in this mandate, the time for consultation will have passed. We think that the various authorities have had ample opportunity to give us their views. I agree that we are trying to truncate the system a bit to get the Bill through, but I cannot help thinking that the best solution, which I would not welcome, would be to let the Bill fall for now, bring it back in the new mandate and do the thing properly in a proper timescale. I do not see the need for that, because we have done our job. It is a one-line Bill. I can understand the ramifications from your point of view. I do not really know whether 30 months is correct, but 30 months from now is better than 30 months from when the Assembly comes back and manages to pass the Bill: that could be Christmas. I would rather get it done now, if that is possible.

Mr Bailey: That is what we propose. You are absolutely right: the time for consultation will finish if the Bill goes through in this mandate, but 30 months will allow us to be involved with all the sectors to make sure that the outworking of it is appropriate, that it is done in a proper manner across the whole of the sector and that we bring our staff and our whole sector with us.

Ms Sheerin: Thanks to you both. I just happened to speak to the Bill sponsor, who is waiting to come in next. He suggested some sort of a workaround, perhaps, whereby the 30 months would be shortened to 24 months. Would you consider that? Thirty months seemed excessive, but he would compromise.

Mr Bailey: The period of 30 months is an educated guess; it really is. It is hard for us to define, because, as I said in my opening remarks, we do not feel that it has been fully thought through, and we think that there are unknowns in it. From the perspective of the education sector, we would definitely prefer the 30 months. Ultimately, an amendment will, I hope, come from the Committee, and we will ask for 30 months and the maximum time possible. Our concern is that we have not had time to fully work it all out, but, having spoken to a number of parties, we feel that 30 months is around about the right time to ensure that we can deliver it safely and appropriately.

Ms Sheerin: Is that a no to the compromise of 24 months?

Mr Bailey: It is not my decision. We would seek as much time as we can. Ultimately, we want to have the maximum time. We think that 30 months is what we should have, but, ultimately, it is not my or the sector's decision; it comes with the legislation. I am just giving you the views that have been passed to me on behalf of the sectoral bodies and employing authorities.

Ms Sheerin: Thank you.

Mr Delargy: Sorry, Chair. I had my hand up, but everything has been covered now. Thank you.

The Chairperson (Ms McLaughlin): OK. Mark, the Committee issued a pre-emptive call for evidence on 31 January 2022. The Committee has received evidence in the following ways: oral evidence from the Bill sponsor and key stakeholders; written evidence from stakeholders; written evidence provided by the Committee for Education; survey evidence using Citizen Space, where over 388 responses were received; and a Bill paper provided by the Assembly Research and Information Service (RaISe). We heard oral evidence from key stakeholders: the Equality Commission, the Transferor Representatives' Council, the Catholic Schools' Trustee Service (CSTS), the Council for Catholic Maintained Schools, the Integrated Education Fund (IEF) and Ulster University. We consulted widely, and, as I say, we opened online space. Almost a year before, the Bill sponsor did an online survey and met you. We had wide written engagement and evidence from stakeholders, including NASUWT The Teachers' Union and the Transferor Representatives' Council. We have been talking about this for years. We have debated it on the Floor of the Assembly many times, and there has always been a positive response. The Bill addresses the need to remove the exemption, and all parties support that. At this point, as Chair of the Committee, I take exception to a suggestion, nearly, that we have not done our due diligence, because we believe that we have.

At last week's Committee meeting, we voted to progress the Bill to ensure that we could get it through in this mandate, which, I hope, we will do. We accept that you would like the time extended. I concur with my colleague and Deputy Chair, John Stewart: 30 months is an inordinate amount of time to put in place a communication strategy, a system strategy and a data-gathering strategy for a pretty simple article exemption. It has four sentences. There really is only one clause that is significant in any shape, form or fashion.

I have worked in many complicated organisations throughout Northern Ireland. This is just normal human resource practice. It is not human resource practice in schools, but it will quickly be pretty well normalised once you get the systems in place. It is just about data gathering, putting it in a system and away you go. It would open up recruitment for jobs in schools that are not based on or do not take cognisance of a person's religion. That would be good for the system, good for Northern Ireland, good for education and good for your Department. It would give total transparency in what goes on in our schools and in our environment. It is the direction of travel in which Northern Ireland and its citizens want to go.

We all want to compromise. We all want this to go through, and you have expressed that it will happen. I would like to think that we could do it in less than 30 months. As a Committee, we need to give due consideration to what you have told us, but I will ask you this: if the Committee says today that we will go forward with an amendment in that compromise way to extend it to perhaps 24 months, will you, as a Department, because you object to it, say, "Well, we cannot do that. We cannot work with you. We are going to let the Bill fall"?

Mr Bailey: All I say, Chair, is that I am not empowered to say anything different at this stage. The advice that I have had is on a 30-month extension; I am not in a position to say anything different at this stage. That does not mean that there cannot be conversations outside this session to see if 24 months is more appropriate, but I cannot confirm that now because I do not have the authority to do that.

The Chairperson (Ms McLaughlin): I appreciate that, Mark. We are probably putting you in an awkward position of having to work with us on that. From the Committee's point of view, we want to see it happen. That is why we have worked really hard to progress it at pace. The teams worked practically around the clock last week, pooling all the information from the online consultation, which finished just on Monday of this week. We were really pleased with the evidence that we received. There had been concerns that, if there was significant opposition to the exemptions, the Bill would not go through. However, we met nothing substantive on our journey. We, as Committee members, want to deliver on the Bill, if we can, within the time frame that we have left. Your Department has indicated its wish to see the article removed. Hopefully, we can work together and get the job done to everyone's satisfaction.

Nobody else has any questions. I thank you sincerely for putting across your point of view, expressing your concerns and giving us your solutions so that we might reach a compromise. We are all in the same place on delivery. Thank you.

Mr Bailey: Thank you, Chair.

Ms Chambers: Thank you, Chair.