Official Report: Minutes of Evidence

The Chairperson (Mr Mathison): I welcome from the Department of Education Mark Bailey, Alan Boyd and Leanne Johnston. It is great to have you here. Thank you for giving of your time to the Committee, and I apologise for having kept you waiting. Unfortunately, this session is the graveyard shift, but we appreciate your coming to the Committee.

I will hand over to you to make any initial remarks that you want to make. I acknowledge that we have received a very detailed response to a lot of questions that came through on the back of the evidence from the Examiner of Statutory Rules (ESR) and the Assembly's Research and Information Service (RaISe) report. We appreciate the detail that you went into in your response. It is up to you how much of that you want to cover in oral evidence or how much you want to leave to the question-and-answer session.

Mr Mark Bailey (Department of Education): That is fine. Thank you, Chair. You will be glad to hear that I do not plan to cover all the detail. I think that Committee members will welcome the brevity of my opening statement.

Department of Education officials most recently gave evidence to the Committee on the General Teaching Council Bill on 28 January. The following week, you received briefings from the Examiner of Statutory Rules and RaISe. Two weeks ago, the Committee sent the Department a letter that asked officials to comment on some of the issues that the Examiner of Statutory Rules had identified and on each of the questions in RaISe's written report.

The questions asked suggest that the Committee broadly has the following concerns about the Bill as drafted. First, you are concerned that the Bill may confer wide-ranging regulation-making powers on the Department and wide-ranging rule-making powers on the General Teaching Council for Northern Ireland (GTCNI). Secondly, you are concerned that the Bill does not sufficiently clarify governance, accountability and independence arrangements. Thirdly, you are concerned that the Bill will impose increased financial and administrative burdens on teachers and the Department without seeking to mitigate those burdens.

We recognise the concerns that the Committee has raised and the validity of what you do, as part of your scrutiny, to seek greater detail on and justification for each of the proposed changes. We also recognise that it is entirely appropriate that you seek further assurances from the Department and that the regulatory, financial and governance mechanisms included in the Bill ensure that the reformed GTCNI is effective and sustainable, is transparent in its decision-making, is accountable for its use of funding and has, through the fairness and robustness of its disciplinary procedures, the confidence of the profession.

In our response to your recent letter, we endeavoured to respond to each of the 86 individual questions posed. We are here today at the Committee's request to provide any additional clarification and to add to our answers as required.

Given the timescale that the Committee has set for concluding its scrutiny of the Bill, which is by the end of May, we have provided detailed answers, as you have referred to, Chair, and we hope that, between the written answers and the answers that we will provide today, many of your concerns can be conclusively addressed.

The Committee has asked for further detail in certain areas. We acknowledge the Committee's desire to see the planned subordinate regulations that support our Bill. In our most recent evidence session, we indicated our hope that we would be ready to share those with you by this stage. We can advise that the Bill team has been busy, working closely with Departmental Solicitor's Office (DSO) officials to progress the regulations. However, I respectfully note that progress on those has been affected by the need to prioritise the latest written response in the past two weeks.

Through engagement with DSO in recent weeks, however, it has become clear that the drafting of regulations is a technical and legally complex process. Given the gaps that were previously identified about the limited disciplinary powers that were provided to the GTC in 2015, DSO is keen that we, jointly, carefully consider the phrasing of each proposed regulation. DSO is, quite properly, insisting on the check that each provision and every rule-making power to be conferred on the GTCNI can be clearly and unequivocally traced back to an appropriate existing legislative power or to one of the new powers set out in the Bill.

The advice that we have received from DSO is that the work is likely to take at least another two months to complete. DSO's opinion is that the working draft of the regulations is not sufficiently robust to be shared at this stage. In light of the Committee's interest in seeing the detail of the regulations, while we have to respect DSO's advice, we are now considering how else we might give members an understanding of the scope and intended features of the regulations to fill in the gaps where the Bill is silent. Subject to preparation and ministerial clearance, we aim to share a suitable briefing paper with the Committee as soon as possible. It will help to address the Committee's concerns and fill in more of the gaps in what the regulations are intended to cover.

Thank you for allowing me to make those opening remarks. I am happy to take your questions. I am conscious that you want to get to questions quickly because of the time and the detail of the responses that you have already received.

The Chairperson (Mr Mathison): Thank you, Mark. I want to make sure that I have understood the position correctly with regard to the regulations in general. Following DSO advice, it is unlikely that the Committee will have sight of draft regulations. However, your intention is to put together a document that will give us a sense of the scope of the regulations and the exact areas that they will cover. Have I understood that correctly?

Mr Bailey: Yes. I will tease that out a wee bit for you, Chair. To be perfectly frank, this has taken far longer than we thought. When we were here just over a month ago, we genuinely felt that it would be done within three or four weeks. To be fair to DSO, it has engaged with us in great detail, so it is not that it has been negligent or is not supporting us. The level of detail and analysis that has been required has taken far longer than anticipated. DSO is recommending that there is no point in sharing half a set of regulations with the Committee and wasting your time on each individual sentence when those are likely to change because they have not been sufficiently developed.

We are planning to develop a detailed paper explaining the scope and content of what we intend to do through the regulations and to start to address many of the issues that have been raised. A lot of those have to do with the disciplinary processes. However, there is also the make-up of the council and the board and how the board would work. Subject to the Minister's approval, we want to produce a detailed paper that will give you more information and reassure you about what we intend to do in the regulations, rather than expect you to carry on without any further information for a significant number of weeks. That is what we hope to be able to do.

The Chairperson (Mr Mathison): OK. Other members may wish to pick up on that. It is my understanding that it is not standard to get sight of draft regulations for every piece of legislation, but you rightly identified that members are concerned about how wide-ranging the powers might be, and so there has been keen interest in the question of whether we will get sight of them.

The response that you provided to the Committee in relation to the regulations in clause 2 regarding the scope of those powers to:

suggests that any rule-making powers given to the council would be subject to Assembly approval. Have I understood that correctly?

Mr Bailey: I will defer to my colleagues on the detail. Will you pick up on that, Alan?

Mr Alan Boyd (Department of Education): Yes. While the regulations will, as I understand it, be subject to negative resolution, the intention is that we will present them to the Committee to scrutinise. We in no way wish to try to avoid that. It is an iterative process. The Committee has valid concerns, which it has shared with us, and we want to learn. As a team, we have invested nearly five years of effort to get to this point, and we want an outcome that is as robust and productive as we can possibly make it, not just for the GTCNI but for teachers.

The Chairperson (Mr Mathison): In response to question 2 of the questions that the Committee submitted to you, which relates to clause 2, we asked:

It is about striking a balance. Is it the case that there will be no scrutiny once you have delegated the power to the GTC to set its own rules? Is it entirely over to the GTC from that point on, with nobody getting sight of what it chooses to do? Will it be entirely the GTC's own business from then?

Mr Bailey: The GTC will have to operate within the framework of the Bill and the detail of the regulations. As we responded to the Committee's question 2, the plan is:

That means that the membership of the board, the term of office of a board member, the eligibility for reappointment, the appointment of the chairperson and the appointment of committees and subcommittees will be in the regulations.

The Chairperson (Mr Mathison): OK.

Mr Bailey: There will be a level of detail below that when it comes to detailing, for example, the number of members that might be needed on particular committees or subcommittees, which would be done more at GTC level, but the intention is to have the things that I have just outlined in the regulations.

The Chairperson (Mr Mathison): I will make two further points. The first is an issue that you did not highlight as a concern, but which I would probably add to the list. Another issue in the mix is the question of whether the council should be subject to an elective process or an appointment process. I want to get a sense of how strongly wedded the policy intent of the Bill is to the notion that membership of the council will be exclusively by public appointment. Is there any scope for Ministers or Departments to think that, perhaps, the teaching members of the council — we are assured that there will be six — will be subject to an election process?

I ask that in the clear context that I have no interest in repeating the dysfunctional mistakes of the past with GTC. I do not need to be persuaded about its having been dysfunctional — it was — but there is a balance to be struck with the confidence of the teaching profession. To what extent is the policy fixed? If the Committee was minded to look at an amendment in that space, for instance, would the Department have any interest in looking at that as a shift in how it is framed.

Mr Bailey: As you know, Chair, that comes up regularly. Every time that we have spoken to the trade unions about it, which we have done on a number of occasions, that has been their repeated appeal. To be fair to them, they have not changed their position, which is that they believe that members should be elected. Likewise, we have not changed our position, and it is not our intention to change our position. I say that not to be dogmatic but because it was a small number of elected members who caused the problem last time round. It would be irresponsible of us to bring forward a Bill that left open the possibility of repeating, once again, the mistakes of 10 years ago.

One of the key recommendations from the Baker Tilly Mooney Moore review was that it should be through a public appointments process. We genuinely do not believe that that dilutes the teaching representation. The guarantee of 50% of the board being teachers means that they will have more than adequate representation. It will also mean that the board will have the necessary skills and abilities to perform at the level required for governance. History has shown that, previously, there was infighting and that the board was factional and had parochial interests.

The Chairperson (Mr Mathison): I have one final question. One aspect of your response to Committee questions on clause 12 is not particularly clear. Is there no intention to put in any cost-control measures on fee raising? I am happy to state my position and be crystal clear: teachers should pay for their professional registration and professional body. However, I am concerned that the Bill, as presented, lacks cost control and allows the council to charge fees over and above the cost of running the council's functions. I am concerned that there seems to be no provision on that. I would like some assurance on that.

Mr Bailey: I will make a couple of comments, and colleagues may want to add to them. The intent is that the GTC could set its own fees — you have seen that in the response — but that is not a free-for-all, because there is the normal arm's-length body (ALB) control processes. This will not be a profit-making body. The body would be accountable to the Department. There is a series of controls with every ALB: a business plan has to be submitted to the Department; the Department has financial oversight; and there are six-monthly reviews with the organisation to ensure that things are in order and that authority is sought where necessary. For example, the organisation would only be able to dip into the reserves with the Department's authority.

The Chairperson (Mr Mathison): It can set its fee without the Department's authority, if I have understood it correctly.

Mr Bailey: That would be subject to the overall financial control of the organisation by the Department. You could not have the GTC tripling or quadrupling the fee, building up massive reserves and having extra money that is not required, because the Department would see that through its oversight and would not allow it to happen. I do not know if colleagues want to add to that.

The Chairperson (Mr Mathison): I will add something, and then, certainly, feel free to come in. I am not suggesting that the GTC is some sort of malign organisation that wants to amass huge reserves for personal gain or wants to exploit teachers. There have been references to what might happen if there was a problem, such as a shortfall in the employees' pension pot or if a huge maintenance project were required, such as a big IT infrastructure project, or a need to move premises.

Could you see a massive hike in fees in one year, because it appears that there is no control mechanism? Should something not be built in to say that the Department should approve the proposed fee rise or some mechanism that will give teachers comfort?

Mr Boyd: We have heard, repeatedly, from the unions the desire for the GTCNI to be a wholly independent body.

The Chairperson (Mr Mathison): I am not here to speak for the unions; I am asking a question about fees.

Mr Boyd: It is difficult to square the circle of demands for independence, because when we offer greater independence people suddenly seem to be very concerned about that.

The Chairperson (Mr Mathison): I am not asking this question at the behest of the unions. The first thing that I noticed in the Bill is that clause 12 allows fees to be raised without any —.

Mr Boyd: There will be six teachers on the board of the new GTC if the Bill goes forward in its current form. They will have a vested interest, as will their colleagues, in making sure that every penny that the GTC spends is spent wisely. I do not understand the fear that fees are going to run away, because the board will have very close insight into how the money collected is spent, and if a fee rise is proposed, the basis on which it is required to meet any emerging pressure on the organisation. That is not to say that that is not a legitimate concern — we understand why the unions want us to have a close regard to it — but I do not see a strong rationale where that would ever be a likely scenario.

The Chairperson (Mr Mathison): I understand your explanation on the fee control from the Department's perspective: the teacher representatives on the council are the check and balance.

Mr Bailey: The Department also has oversight. The Department is already involved in regular reviews of its ALBs' business plans, expenditure and how the expenditure is managed. There is oversight of the financial governance of every ALB.

Ms Leanne Johnston (Department of Education): I think that your issue with clause 12 is the reference to "exceeds the cost".

The Chairperson (Mr Mathison): Yes. That is exactly the line that concerns me.

Ms Johnston: It has been written that way to allow the GTC the freedom to consider two or three years' expenditure, figure in the financial impact of those couple of years and even out a fee. It is not about changing a fee every year and hiking it up and down as costs are considered. The second paragraph of new article 39A states that the council must:

It is not that it can just charge —.

The Chairperson (Mr Mathison): I see that those two paragraphs balance each other out to an extent, but there is nothing formal on cost control. I will leave that with you as something for the Department to consider. I appreciate and understand the answers given.

Mr Sheehan: I have two short questions. First, will you remind us how the teacher representatives will be appointed and by whom?

Mr Bailey: There will be a public appointments process that the Commissioner for Public Appointments for Northern Ireland will be involved in and part of. The teachers who are represented have to be registered teachers in the first place. That will be what identifies them as a teacher.

Mr Sheehan: Do they apply?

Mr Bailey: Yes. There will be a public advertisement for membership of both teaching and non-teaching representatives. The criteria will specify what a person needs in order to be a part of the board.

Mr Sheehan: Have those criteria been drawn up yet?

Mr Bailey: No, not in detail. They will follow normal board-level, corporate governance and oversight criteria. Half the members of the board will be registered teachers and so will represent the profession directly.

Mr Sheehan: OK. Thanks for that. Sorry, do you want to come in, Alan?

Mr Boyd: I was going to say that it is, essentially, a very similar model to that used by the Education Workforce Council (EWC) in Wales. It has 14 members, seven of whom are appointed directly by the Department. The other seven are ministerial appointees from a group of nominating bodies that are invited to put forward members. Those seven members must be subject to ministerial appointment and demonstrate that they meet the same skills criteria as the seven direct appointees. We are not proposing anything that is wildly out of step with what is done elsewhere.

Mr Sheehan: OK. Thanks for that. I know that it is difficult to be precise about when the regulations may be finished, but do you have a ballpark figure?

Mr Bailey: The latest indications from DSO are that it will be at least two months. That is much longer than we had anticipated when we were here before, which is why we are proposing to try to get you further detail about the intent and the function of what we are trying to do in the regulations.

I mentioned a number of things about the membership of the board and the term of office. What we want to do is provide a whole lot more detail for all the different areas that the regulations cover. In particular, there is a lot of detail on the disciplinary process and how that would be managed.

Mr Sheehan: You said that the Committee's getting sight of the regulations will depend on whether the Minister wants to share them. Is that right?

Mr Bailey: Like anything that comes to the Committee, they will have to be cleared by the Minister. That is the normal process. However, if the regulations that are with DSO are in their final stage, there is no reason why they would not be shared further. I am just following the normal protocol. The Minister always approves everything that passes from the Department to the Committee.

Mr Sheehan: But there is no reason that you can think of why the Minster would not share them?

Mr Bailey: The regulations will become public eventually.

Mr Sheehan: It is just that, when the uniform legislation went through the Committee, we were promised that we would get sight of the guidelines. Officials promised us that on a number of occasions. They said, "The guidelines are imminent", "You'll have them next week" and so on. However, we did not get them, and then the Minister told us in the Chamber that we would not get them until the legislation had been passed. I am interested in how the regulations will be dealt with. I know that it is not exactly the same.

Mr Bailey: I cannot comment on the School Uniforms (Guidelines and Allowances) Bill because I was not involved in it at all. However, we are genuinely surprised. When we were here a month ago, the plan was to have them with you by now. The thing that is holding that up has nothing to do with the Minister; it is because of the detail of having to work through things with DSO to make sure that every element of the regulations is correctly linked. As I said, there is far more linkage between the existing legislation and the proposed new powers. That is the only thing that is holding that up.

Mr Sheehan: OK. Thanks for that.

Mr Burrows: Thank you for that. If we get to a disciplinary hearing for teachers, will its chair be legally qualified?

Mr Bailey: I think that that has been thought about.

Mr Boyd: The thinking has progressed, and GTCNI has developed some flow charts and detailed thoughts and processes. At the moment, it is thinking about a three-person panel comprising at least one layperson, at least one teacher representative, and possibly the third person's being a legal adviser, or possibly a third person plus access to legal support. The GTC has not yet gone into the level of detail that you are asking about in its thinking. Once it has an idea of what will be workable, it will want processes to test those and to consult with the profession.

Mr Burrows: When did you come here most recently?

Mr Bailey: It was 28 January.

Mr Burrows: One of the first questions that I asked then was about what the panel will look like. It should be chaired by someone who is legally qualified and include a layperson and a teacher representative. That reflects best practice in disciplinary regimes. The panel should also have access to a legal adviser. However, that has not been fleshed out, even though we are well down the line.

Mr Bailey: With respect, there are three layers: the Bill, the regulations, and GTCNI's processes. All the detail of the processes has not been fleshed out. If your concern is that there needs to be legal advice and support as part of the disciplinary committee, that is entirely the intention. Regardless of whether the chair is legally qualified, or whether the committee has access to legal advice, I totally agree with you: that will be required, but we have not worked out the detail of that yet.

Mr Burrows: It is important detail. A fundamental tenet of a disciplinary body that has the power to dismiss someone from their profession under a misconduct regime is that its chair should be legally qualified. That is fundamental. I raised that issue when we first discussed the Bill in the House, and I have raised it here previously. However, we do not know the answer.

Regimes often now disaggregate performance and ethics. If it is something to do with integrity, such as bad conduct, it tends to be dealt with in one set of regulations; if it is something to do with competence, it is dealt with in another, because you want to deal with them in two different ways. However, if someone does something that is really unethical, that is a disciplinary matter. If someone demonstrates incompetence, you want to see whether you can develop and improve them. However, if you cannot improve them, you exit them. It seems that you have put both in the same regime, which is a risk.

Is there any definition of what the Bill refers to as "unacceptable professional conduct"?

Mr Boyd: This is not an excuse, but the profession, in consultation with GTCNI, needs to define a code of conduct and practice. It will be for the profession to define what constitutes "unacceptable professional conduct" and "serious professional incompetence". We, as policy officials, are not remotely qualified to make those judgements.

Mr Burrows: No, but you could have a statutory definition at the outset, which I have seen in other regimes. This seems to be a tad under-thought. This is legislation, is it not? It is a Bill, but you are saying to me, "Well, we haven't thought about that in that detail". These are serious issues. This is about the professional future of teachers, as well as the complainant, who could be a child who has been abused, for example. This is serious stuff.

Mr Bailey: We are not arguing at all with that, Jon. It is serious stuff. You are asking us to ensure that we bring the profession with us. If we, as policy people who are not teachers, try to define everything down to the nth degree, we will not bring the profession with us.

The Bill and the regulations cover all the core powers and the high-level elements of what is required. A lot of the detail of the processes and minutiae underneath, however, will require discussion and consultation with the profession to make sure that it is what is required by them.

Mr Burrows: I will certainly need to be satisfied as I scrutinise this.

My final point is that a lot of misconduct regimes suffer from disproportionality. There are low-level things that should be dealt with at a local level in the school but which are bureaucratised, and the stress goes on teachers with drawn-out procedures. What steps are in place to make sure that this remains a proportionate regime that deals only with potential upper-end cases?

Mr Bailey: That goes to your earlier point about how we define professional misconduct. You are absolutely right: the intent must be that GTCNI will become involved only in the most serious cases.

Mr Burrows: Where does it say that? Just point me to the line.

Mr Bailey: Not everything is in the Bill, Jon. The Bill provides a framework, and the regulations will have a lot of detail on disciplinary procedures. I accept that you have not seen those yet. If we can get a paper that describes the intent of what we want to do through the regulations, you will see that there is a lot of information on the disciplinary areas that you are asking about. I agree with the thrust and the reasoning of your questions. We want to get a process that the profession agrees with. The high-level protections will be in the Bill and in the regulations, but the detail of how that is delivered will be covered by some of the questions that you have asked.

Mr Burrows: The areas that I have just asked about are not in the Bill or the regulations. They include protections, such as a legally qualified chair who can find you guilty of a serious professional offence; and that things must be kept proportionate. There is a danger in conflating really bad conduct — you should never serve in a school again — with saying that you are incompetent, which is a totally different thing. You might come back five years later, when you are a bit older, having developed into someone who can be a teacher. Those are fundamentals that, I think, should be right through the Bill like a letter through a stick of rock.

I have expressed concerns about that from the outset. There are experts in disciplinary regimes, such as barristers, who could help with this. I used to do this stuff for a living, and, honestly, there are big errors here in how you have set out the basic framework.

The Chairperson (Mr Mathison): I will give Mark an opportunity to respond. We can pick up on Jon's areas of interest in our future closed-session considerations.

Mr Bailey: I understand your questions, Jon. You have not seen the regulations, and that is a major part of the problem. If we can provide you with more detail on the intent of the regulations, I hope that that will reassure you. We will take all of that on board. There is nothing that you have said that is irrelevant or not important; all of it is very important. It is about when those powers are prescribed in minute detail. If we can get more detail to you about the intention of the regulations, I hope that that will help. We will have a more comprehensive discussion at that point.

Mr Burrows: When I ask scrutiny questions, it does not necessarily mean that I am against the direction. It is what I do to all witnesses.

Mr Bailey: No, I understand. That is your job.

Mr Burrows: Thank you.

The Chairperson (Mr Mathison): I have had no other indications from members. I have one brief question about the regulation-making powers in the new schedule 1A to be inserted under clause 11. It states:

and lists some detailed and quite specific things to do with disciplinary and investigatory powers. Given that we are not to have sight of the regulations, will the material in your briefing paper on the general thrust and direction of travel of the regulations clarify whether everything in the new schedule 1A will be included? To say that you "may make provision" or may not make provisions that reflect the new schedule 1A is quite broad. To what extent can we rely on the new schedule 1A that this is how the new disciplinary powers will look, or will it be something different?

Mr Bailey: Alan, can you pick up on the detail that will, hopefully, be provided in the paper?

Mr Boyd: I can reassure the Committee that, in preparing the current draft regulations and discussing them with DSO, we have already put in a raft of detail below the new schedule 1A, including, for example, notification periods for teachers to be notified of accusations against them and the commencement of proceedings; how and when they would be notified of a hearing; and their rights to appear and to be represented at a hearing and to make written submissions. A lot of that detail has already been thought of and will feature in the regs as soon as —.

The Chairperson (Mr Mathison): Can we be assured that what is in schedule 1A is a bare minimum that will definitely be in the regulations and that it will not be less than that?

Mr Boyd: Yes.

The Chairperson (Mr Mathison): Everything that is in schedule 1A will be reflected in the regs. It is just that it says it "may" make provision along those lines. It raises the question: why is it in there if you may or may not do it? You have been so specific in schedule 1A.

Mr Boyd: Our use of "may" was on the advice of a far-seeing legislative draughtsperson, which is that you do not paint yourself into a corner. When it becomes a matter of settled law, any change is very difficult. Therefore, you draft slightly broader enabling powers so that you can revisit with a minimum of pain or develop the thinking and bring forward revised regulations downstream, without having to revisit —.

The Chairperson (Mr Mathison): Maybe I misunderstand. It seems that, on the one hand, you have been quite broad, "We may do this", and then, on the other, you proceed to be really prescriptive. If you wanted to keep it open, you did not need to put any of that in: you could just say that you may make regulations about disciplinary powers. I am looking for an assurance that we can rely that what is in schedule 1A will be in the regs. It will?

Mr Boyd: Yes.

The Chairperson (Mr Mathison): That is clear: but there could be more in addition to that. That is helpful.

Have members any other questions? No? Thank you for your time. No doubt we will be in contact.

Mr Bailey: Thank you.