Official Report: Minutes of Evidence

The Chairperson (Mr Mathison): I welcome Margaret Rose McNaughton, director of transport and food in schools, and Shirley Sweeney, head of the school uniform policy team. Both witnesses are from the Department of Education, and they join us online.

I want to pick up on an issue that was covered in the session with the National Association of Head Teachers (NAHT). It was around the timelines for the delivery of the Bill, particularly the publication of schools' prospectuses. You provided to the Committee a written response that covered some of those issues. I do not know whether there was some confusion. Your answer in that letter seemed to suggest that you thought that we were talking about schools needing to include the departmental guidelines in their prospectuses. That was certainly not our suggestion. Our question was really about reflecting departmental guidelines in the uniform policies that would be in those prospectuses. I just wanted to check on the timeline. What is the latest possible date that guidelines need to be made available to school leaders so that a reflection of those can be included in prospectuses, which, I understand, are submitted for approval for publication in November? Can you give us any idea, from the Department's perspective, what that latest possible date is?

Ms Margaret Rose McNaughton (Department of Education): It all depends, of course, on Royal Assent. We hope that that will be in early October.

The Chairperson (Mr Mathison): We are not really asking when the guidelines can be available. My understanding is that this was set out clearly by the Minister when he introduced the legislation. In the debate on how long the Committee Stage should run for, it was clearly stated that there was a real urgency to do this so that school uniform policies could be updated to reflect the new guidelines in time for the publication of prospectuses. Is there a date by which prospectuses need to be published so that they are ready for the September 2026 intake? That is my first question.

Mrs Shirley Sweeney (Department of Education): There is a set of regulations — subordinate legislation — that requires school prospectuses to be published six weeks before parents express a preference for the school that they wish their child to attend. That is done through the Education Authority admissions portal, which normally opens in January.

Working back from that, under the regulations, the prospectuses are to be published by mid-to-late November or early December — there are different dates for primary and post-primary — assuming that the timeline is similar to that of the past number of years.

The Chairperson (Mr Mathison): So, the prospectuses are to be published by November. Have you engaged with school leaders to understand the latest date by which they need to have the new statutory guidelines to enable them to ensure that their policies are compliant in time for the November date?

Mrs Sweeney: On 24 September 2024, the permanent secretary wrote to all schools to highlight the provisions and requirements of the potential Bill, as it was then. We hope to write to schools again shortly to update them on the Bill as introduced. All the letters have highlighted and will highlight the key steps, which are also in line with the non-statutory guidelines on consulting with parents and pupils, having a rationale for uniforms —.

The Chairperson (Mr Mathison): Sorry to interrupt. My question is this: from your engagement with schools, what does the Department understand to be the latest date by which school leaders need to have the new guidelines? I am pretty sure that the Bill as introduced is not the Bill that will complete its stages in the Assembly. There is clear interest in amendments. What, therefore, is the latest date by which the guidance that reflects the final Bill as passed needs to be with school leaders to facilitate appropriate policies being included in school prospectuses?

Mrs Sweeney: I think that we will —.

Ms McNaughton: Sorry, Shirley.

Mrs Sweeney: Go ahead, Margaret Rose.

Ms McNaughton: I think —.

The Chairperson (Mr Mathison): I hope that it is a straightforward question. I do not know.

Ms McNaughton: School leaders should already know what will be asked of them when they renew their school policies.

The Chairperson (Mr Mathison): They do not know what the Bill will look like after amendments have been made.

Ms McNaughton: No, but they know that they will have to formally consult with children and young people and their parents. We were specific about that in the letter that went out last September. I was just listening to some of the comments —.

The Chairperson (Mr Mathison): I am not clear on the date. To help me understand the position of a school leader who receives the new guidelines, whenever they arrive, let us say that the Bill goes through the Assembly at a rapid pace and that the new guidance, reflecting all the amendments that have gone through at some point, is published and ready in October. Given the need to convene meetings with boards of governors, review policies and consult with parents and pupils, NAHT was clear that drafting a new policy, getting it approved by the board of governors and having it reflected in school prospectuses to be published in November would not be deliverable. Essentially, we are saying either that all current school uniform policies will automatically be compliant, or that they cannot be reflected in November. It is about trying to understand whether the timescale is feasible.

Mrs Sweeney: One thing to note is that the detail will be required to be published on school websites. For prospectuses, all that we will ask is that schools look to the Bill as introduced and ensure that there is nothing in the policy that they intend to publish in their prospectus at the end of November or beginning of December that does not align with it. For specific issues, the Bill provides transitional powers, as you know. Another point that NAHT made during its evidence was that, as far as it is aware, the majority of schools already adhere to the non-statutory guidelines. If that is the case, there should not be an issue. The prospectus is not required to publish the detail; all that is required of the prospectus is that it does not publish a commitment to, for example, an extensive set of branded PE kit. As long as that is not included —.

The Chairperson (Mr Mathison): We know that some schools currently publish a uniform policy that includes extensive branded PE kit and lots of branded items of uniform and bespoke items. Just to be clear, your understanding is that, given the timescale that the Minister outlined, those schools will review their uniform policies wholesale in time for November prospectuses to comply with the guidelines. Is that the expectation?

Mrs Sweeney: The expectation is that they will not publish anything in the prospectus that does not align with the Bill. That is less detail than is required for the full policy.

The Chairperson (Mr Mathison): I am concerned. It was sold to us by the Minister that this would all be done and dusted by September 2026. If we do not have Royal Assent and the Bill is amended to any extent that departs from the guidelines that you are currently drafting, there is a concern that, for the schools where the real problems lie, this will not be delivered on time, and I have not heard anything that reassures me on that point. I understand that your intention is that that is what will happen.

I want to ask about the large number of "may" provisions in the Bill. Lots of clauses refer to what the guidelines "may" include and "may" address. For instance, clause 2(3) refers to a "reasonable" number of items for particular activities or availability from particular suppliers. It covers that understanding of what is a reasonable number and types of items to include. If that is important and we want schools to do something about that, why do we not just make those kinds of provisions in the Bill into "musts", so that everybody knows now with certainty that that is going to be covered, rather than leaving a sense of uncertainty around that?

Mrs Sweeney: The framework for the Bill was drafted on the principle on which it was brought forward, which is to address the issue of affordability. You will notice, therefore, that any provisions that relate to affordability are "must" provisions. It is also important to bear in mind that schools must adhere to what goes into the guidelines. If it is in the guidelines, schools must adhere to it.

The Chairperson (Mr Mathison): You will understand, however, that the Committee wants to be assured that what is going to end up in the guidelines will achieve that aim. Clauses such as clause 2(3), for instance, give me concern because that really is addressing affordability. It refers to:

It refers to:

Those are all clearly cost drivers. A large part of that clause is about PE, different activities and occasions, and the number of sets of items. If we are clear that we want to address with schools what is reasonable, would the Department not just consider saying, "That needs to be a 'must' provision"?

Ms McNaughton: We hope to have the guidelines with you by the end of next week, subject to general internal clearance. You will see that they cover each of those issues regarding single suppliers, specific styles and branded items, and they will state that "schools must" or "schools must not".

The Chairperson (Mr Mathison): The Committee looks forward to seeing the guidelines. We are conscious that they are based on the Bill as introduced, not as the Bill will probably conclude. The concern is future-proofing.

Mr Sheehan: I want to clarify what Margaret Rose said. She said that we should get the guidelines when?

The Chairperson (Mr Mathison): Within the next few weeks, was it?

Ms McNaughton: By the end of next week.

The Chairperson (Mr Mathison): Are those draft guidelines or will they have ministerial approval?

Ms McNaughton: They will be draft guidelines.

The Chairperson (Mr Mathison): OK. You will understand that concern, then, about draft guidelines. Furthermore, those guidelines are to be reviewed, so if ever a Minister was to say, "Actually, I don't like that provision", and it was still a "may" provision in the legislation, you could in the future remove stuff from the guidelines that is good, whereas "must" provisions give certainty as to what we are going to see and future-proof the Bill.

Mrs Sweeney: That is right. It is looking at it with a view to future-proofing to consider whether in 10, 20, 30 or 40 years a requirement should still be a "must" given the length of time that primary legislation can be in place. It is for the Committee to form a view on that, with its own legal advice. We have always approached this by thinking through the purpose of the Bill, and the professional drafters drafted on that basis. That is why there is a framework. It is also about thinking through whether there are unintended consequences if a provision is a "must". There may not be, and that is fine, but it is always about thinking with that lens. It is not that there would be any resistance to doing that. We wanted to make sure that the powers that are needed to address all those issues are in the Bill, as introduced.

The reason for providing draft guidelines now is so that we can test those with the Departmental Solicitor's Office (DSO). Once the amendments have been voted through and we know, following Consideration Stage, Further Consideration Stage and Final Stage what will be in the Bill, we will be able to update the guidelines to reflect that and, hopefully, expedite getting them issued. That is the reason for producing draft guidelines now, as well as the fact that we think that it is useful for the Committee to have sight of those.

The Chairperson (Mr Mathison): Thank you for that. I certainly emphasise the point about the Department looking at strengthening some of those provisions, particularly around the clause on reasonableness and around who must be consulted with rather than leaving that open-ended. It seems that those things are clearly connected to engaging parents and addressing affordability. It would be reassuring to and welcomed by the Committee were those provisions to be strengthened rather than our being left guessing a little bit on what might land in the final guidance. I will leave it at that.

Mr Sheehan: Thanks, Shirley and Margaret Rose, for that. You will be aware that representatives from the Human Rights Commission attended Committee yesterday morning. They suggested that inclusivity should be incorporated in clause 2, which sets out what the Bill intends to do with guidelines. I know that you have said to us previously that we should not try to be too prescriptive about the Bill, but the chief commissioner to the Human Rights Commission said:

How would you respond to that evidence, which was given yesterday?

Mrs Sweeney: One of the key matters is that we reflect on the fact that the Bill places a duty on schools to adhere to the guidelines. All grant-aided and independent primary and post-primary schools must adhere to whatever is in the guidelines. There cannot be that inconsistency.

Mr Sheehan: Is there any suggestion that inclusivity will be incorporated in the Bill or the guidelines at any stage?

Mrs Sweeney: Yes, it is our intention to do that by references to, for example, pupils with SEN, reasonable adjustments and sensory needs etc.

Ms McNaughton: It will be in the guidelines.

Mr Sheehan: I am not just talking about children with SEN. In fact, the chief commissioner suggested that there should be more explicit reference to human rights law, specifically article 14 under the European Convention on Human Rights. How would you react to that?

Mrs Sweeney: Is that the "best interests" principle?

Mr Sheehan: Yes.

Mrs Sweeney: Hopefully, once you see the draft guidelines, you will see where those matters are intended to be reflected. We have taken the position that, yes, those types of details are matters for the guidelines.

Mr Sheehan: I have a final quick question. Have either of you, or the Department or Minister, had any direct consultation with the Human Rights Commission?

Ms McNaughton: There was no direct consultation with the Human Rights Commission, but it responded as part of the general consultation.

Mr Sheehan: But there has been no direct engagement, has there?

Ms McNaughton: There was no direct engagement, no.

Mr Sheehan: Thank you.

Mrs Guy: Thank you very much for your answers so far. When it comes to monitoring, what kind of data will the Department capture on school uniform costs? Will you be able to know the cost of each school's uniform?

Ms McNaughton: Sorry, Michelle, I had difficulty hearing that.

Mrs Guy: I am asking about monitoring and data capture. What kind of data are you going to capture when it comes to monitoring?

Mrs Sweeney: Margaret Rose has had technological problems all day. Apologies if she has dropped off. At this stage, we are looking to see how we can gather as much information in an electronic format as possible to give us access to all of that without its being an administrative burden or a bureaucratic issue for schools. The intention — we are in the very early stages; I think that we made reference to that in our written response — is to get all that information tied to the information that we will require schools to publish, such as costs per item, rationale etc for uniform, and information about the consultation. That is our current thinking. As I said, it is very early days, but we hope that we will have all that information. There is a recognition in the Department that, certainly for the first number of years, there needs to be a focus on monitoring that to ensure that the Act has the impact that it needs to have.

Mrs Guy: Do you think that you will know the cost of each school's uniform through the data that you are capturing?

Mrs Sweeney: That is the hope. As I said, it is early days, but that is the territory that we are looking at.

Mrs Guy: Will you give us a bit more information on the way in which you view your definition of "branded"? Obviously, there is information in the Bill, but how far do you go in what is considered to be "branded"? We could get into particular colours in schools and particular styles of uniform. What is the Department's view on just how it will define "branded"?

Ms McNaughton: We intend to put a definition of what we mean by "branded" in the guidelines. I am trying to go between screens to get the definition as it stands, but I cannot find it. Apologies. We do have a definition. By "branded", we mean items from sportswear companies with a particular logo. It could be various specific colours. A collar with gold braiding could be considered branded. If I could find the definition, this would be much easier, but I cannot get my hands on the guidelines between the screens. Apologies. We will have a definition in the guidelines of what we mean by "branded".

Mrs Sweeney: It builds on the definition of "specific styles" in clause 9. It is linked to school-specific logos and branding, and, as Margaret Rose said, the branding that is used by large sportswear companies. It is to try to clarify for schools what we are talking about.

Mr Martin: Thank you very much for coming online with us, ladies. Shirley, I am really glad that you are not on the main screen; I would feel as though I were being interrogated because of that bright light behind you.

Mrs Sweeney: Sorry.

Mr Martin: You are going to ask me lots of questions, and I am going to panic because I am faced with that very bright light.

We had the Human Rights Commission before us yesterday. As the Deputy Chair mentioned, there was some discussion around human rights compliance and so forth. I have not managed to find the Hansard report of the session yesterday, but I think that it is fair to say that the chief commissioner felt that section 75 is not enough to deal with the issues around inclusivity. Eventually, the Hansard report will be produced, and we will all be able to check out exactly what was said. Are you clear about whether all legislation in Northern Ireland has to conform to section 75 of the Northern Ireland Act?

Mrs Sweeney: We had many discussions with the Office of the Legislative Counsel (OLC) during the Bill's drafting about what needed to be cross-referenced or included. The advice is very clear: all existing equality and human rights legislation that applies to schools does not need to be repeated in the Bill. It already applies.

Sorry, Margaret Rose, I think that you were going to say something.

Ms McNaughton: I was just going to say that, at the end of the guidelines, we are going to put references to all the other legislation that continues to apply and state that schools still need to continue to adhere strictly to that legislation.

Mr Martin: That is my understanding as well. I put the point that it would be quite unusual for primary legislation in Northern Ireland to have particular reference to some of the things that the commission wants to see in the Bill. Section 75 of the Northern Ireland Act 1998 states that Departments are required to have:

That is quite an extensive group. My understanding, which is what I was checking with you, is that legislation that is brought forward must be compliant with that.

As we await the guidelines, I expect there to be some reference to that, perhaps at the end of the guidelines. "Intuitively" is not the right word for it, but, "instinctively", all legislation has to be compliant within that category to make sure that we are human rights-compliant with the Bill, and my understanding is that we are.

Ms McNaughton: One of the lines will be that "a range of legislation exists to prohibit unlawful discrimination and protect the rights of individuals in various areas, including human rights, race, sex and disability". We will detail, maybe in an annex to the guidelines, what those main pieces of legislation are. They will be the Human Rights Act; the Race Relations Act; the Sex Discrimination Act; the Equality Act; and the Disability Discrimination Act; along with some useful contacts. That will probably be included as an annex to the guidelines. It is already statutory that we have to follow that equality and other legislation. They will not be statutory again because they already are statutory, if that makes sense.

Mr Martin: That makes perfect sense. That is my understanding. I will reflect and concur with the Chair that the Committee is very interested in seeing the guidelines, as they will provide a level of reassurance around some of the areas that we are all discussing. If you can provide them by the end of next week, it will be incredibly helpful for us to get our hands on those and see where we are.

Ms McNaughton: At the end of next week?

Mr Martin: Yes.

Ms McNaughton: I thought that you said at the beginning of next week. [Laughter.]

Mr Martin: Margaret Rose, I know that you have worked magic in the Department before. Maybe you could get your magic wand out and we could have them for tomorrow.

Ms McNaughton: I do not think so.

The Chairperson (Mr Mathison): I have one final question on clauses 3 and 4 on the enabling powers around capping numbers of branded items or a financial cap. You indicated in previous evidence sessions that the Department is definitely going to consult on those. Given the level of parental interest in the capping, be it items or be it financial, can you give us an idea of the timeline for that consultation?

Ms McNaughton: It is really [Inaudible.]

The Chairperson (Mr Mathison): We have lost your audio, Margaret Rose. It was a critical moment, but we lost you. Apologies.

Ms McNaughton: The cap consultation is the next piece of work that we want to undertake. There is just the two of us here. Once we get the guidelines to the Committee, the next paper to finalise will be the paper on the cap. I had hoped that we would probably have consultation around June, but that is unlikely to happen. It is not going to happen actually. That will be slightly delayed.

The Chairperson (Mr Mathison): From what you are saying, it is likely to be this calendar year. It is not going to be much extended beyond June.

Ms McNaughton: No, no. I hope that it will be in this calendar year, yes.

The Chairperson (Mr Mathison): That is welcome.

This is my last point. On the direction of travel, is the purpose of the consultation to develop legislation on the caps or to make a decision on whether or not you want to use that enabling power? Is it clear yet that, yes, we want to use the power and we just need to figure out the detail of that, or are we not yet decided on that point?

Ms McNaughton: We will have to be guided by the responses to the consultation. The enabling power is there. Once we know that, first, everybody is supportive of a cap, whether that be on numbers or at a financial level, we have the enabling power that we can then bring in when it is necessary — if it is necessary. We have always said that we know that a lot of schools do an awful lot of very good work on uniforms, so we absolutely do not want to put a cap across the board that would be more expensive than what some schools can get their uniforms for. It is not to say that schools will all bring their uniform costs up to the level of the cap, but there is nothing to stop suppliers or retailers putting up their prices. We want to be sure, first, that we absolutely need the cap, and then we have the enabling legislation to introduce one when we need it.

The Chairperson (Mr Mathison): That is absolutely fine. It was just to clarify whether there is a clear direction of travel and we are working out the detail or whether we will review, based on the consultation, whether we need to use those enabling powers. That is perfectly clear, so thank you for that.

Do any other members want to come in at this stage? No. We appreciate your time and the fact that you have offered to make yourselves available for the next number of weeks to cover the issues as the Committee continues its scrutiny. That is very much appreciated. I know that technical issues do not always make it easy to get through these sessions, and I hope that you were able to pick up everything that was asked. Thank you both for your time.

Ms McNaughton: Thank you very much.

Mrs Sweeney: Thank you.