Official Report: Minutes of Evidence

The Chairperson (Mr Mathison): During the closed session, we had a discussion about a couple of potential amendments to clauses 2 and 9 of the General Teaching Council Bill. However, it was agreed that we would seek advice and further input from the departmental Bill team. We have been joined online by representatives of the General Teaching Council (GTC) as well.

Thank you for making yourselves available to the Committee today. I hope that this will be a fairly quick session. We wanted to pick up on a couple of issues from the evidence that we heard. In particular, I wanted to pick up on clauses 2 and 9. When you presented to the Committee when the Bill was first introduced, there was some discussion on clauses 2 and 9. The teaching unions raised concerns about those clauses when they gave evidence, particularly about the use of the phrase "require or authorise" and the power created for the Department to require the General Teaching Council to make provision by rules.

The Committee is considering an amendment to remove the word "require" and simply make it a permissive change, with the tidying-up provisions that were required in the Education (Northern Ireland) Order 1998 still in there. We wanted to hear the Department's response and ask why the word "require" is in there. What is the Department's assessment for making that change?

Mr Mark Bailey (Department of Education): Thank you, Chair. I am joined by Alan Boyd and Leanne Johnston, who attended the previous evidence session. I will hand over to Alan, who is much more over the detail of the regulations than I am.

Mr Alan Boyd (Department of Education): That particular wording was inserted based on advice that we received from the Departmental Solicitor's Office (DSO) that the original wording simply to "authorise" would be considered too general and too vague. We were specifically advised to put that wording in, which is why it is there. It is not indicative of a desire to exercise any great or unusual degree of control over what would happen.

The Chairperson (Mr Mathison): Are there particular provisions whereby, at this stage, you intend to require the council to make provision for by rules? At this stage, can you confirm whether you intend to use that power of requirement?

Mr Boyd: At the moment, we are still talking about very high-level stuff, such as the council determining the provisions for the tenure and vacation of office by its members and for the establishment of standing committees or committees and subcommittees on a more ad hoc basis. It is about our requiring the council to take those actions in pursuance of the functions that it is required to exercise, particularly when it comes to all the disciplinary committees and subcommittees.

The Chairperson (Mr Mathison): Are you aware of the teaching unions' concern that the phrase "require" in clauses 2 and 9 creates a context in which the council is not demonstrably independent from the Department and can, in effect, be directed at any stage? How do you respond to that?

Ms Leanne Johnston (Department of Education): The previous DSO advice was that the word "authorise" did not go far enough. The phrase "may require" is not really a power to direct, as such, according to the advice from the Office of the Legislative Council (OLC). It is not a directing power, but it is one that says we may require the General Teaching Council to set out the information about the tenure in rules. It is not supposed to be a directing power. We have relied on previous DSO advice that "authorise" did not go far enough and did not give us the proper authority for GTC to make the rules.

The Chairperson (Mr Mathison): I am not completely clear on the difference in law between "directing" the council to do something and "requiring" it to do something. They seem to be fairly close in their effect. How would you articulate that difference?

Mr Bailey: It would make more sense if we reverted to DSO and OLC on that and came back with something in writing to clarify it. It was done on their advice, or certainly on DSO's advice. If it would assist the Committee, we will provide something in writing to explain why that phrase is required.

The Chairperson (Mr Mathison): That would be helpful. It would be helpful to get a sense of what impact removing the word "require" would have on the functioning of the council. We hope to move to our formal clause-by-clause consideration of the Bill next week. I do not know whether a response could be turned around within that timescale. We are getting near to the end of the Committee Stage, and it would be helpful if that could be provided. The question was asked following last week's Committee session.

Mr Bailey: That is fine, Chair. We will do what we can. We will contact DSO straight away.

The Chairperson (Mr Mathison): That is appreciated. I have one more question, before bringing in other members, which is off the back of your correspondence about the Committee's sense that the Bill diverges from the Welsh model. Your correspondence acknowledges that the Bill does not lift wholesale from the Welsh model. I have a slight concern that we are perhaps making legislation based on just one particular group of people who sat on a council to represent interest groups at a particular time, and that proved to be dysfunctional, and that, in so doing, we might throw the baby out with the bathwater.

The review of the council was damning — I do not dispute that nor the need for reform — but I note that the Welsh model has a nomination process that precedes the appointment process. Would the Department be prepared to move on that or to consider that at all so that we can get assurances that there are individuals on the council who are properly representative of the teaching profession?

Mr Bailey: As you know from our response, Chair, the Welsh model is aligned with the public appointments process. Wales follows a process of public appointments similar to what we propose and to that for most arm's-length bodies (ALBs). There is absolutely nothing to stop trade union representatives applying through that process, provided that they are teachers: they can self-nominate by application. The fact is that we are going through a recruitment process to get the right skills. As you know, the concern expressed by the unions is about not having sufficient teacher representation. Again, we believe that we have dealt with that by requiring half the council to be teacher representatives. They have to be applicants from the teaching profession, so teachers will be represented.

We have looked not just at the Welsh model, although it has been referred to a lot; we have looked at what has happened in other jurisdictions as well. We believe that this is the best all-round solution, not as a knee-jerk reaction to what happened in the past but as a process to ensure that the correct people are appointed to the board, can fulfil the roles and represent the function correctly.

The Chairperson (Mr Mathison): Thank you. For clarification, the Committee's correspondence on the Welsh model arose largely from the fact that, in your evidence sessions, you suggested that what was being proposed was most closely aligned with the Welsh model. That is why we picked up on that. The research paper provided to us suggested that the Welsh model and the proposed model were not a like-for-like comparison.

Those are all the questions that I have. Do members have anything else?

Mr Brooks: Thanks for the information. As the Chair said, the main point is the clarification of the wording and what weight the word "require" carries. It seems to me that you and we on the Committee are going on different advice that we have been given, so we should not necessarily die in a ditch over that point. It will be interesting to get clarification on that.

We have talked about the different models of teaching councils in other jurisdictions, but is it fair to say that, when it comes to the general regulation of professions, making appointments in that way is not unheard of? I used to work for the General Medical Council. I am pretty sure that the General Medical Council is made up of appointees, six of whom are from the medical profession while six are other appointees. Have you looked at other models? Is it fair to say that other professional and regulatory bodies use that model, even though it is not necessarily the Welsh model?

Mr Boyd: Yes, we have. Rather than be bounced into

particular ones, we have a document in which we make those comparisons. We could look at reviewing it and providing at least a synopsis of it to you. There are bodies in which all council members are appointees. It ties back to the fact, in my mind at least, that council and board members are generally not able to, or supposed to, exercise a representative function. They come on to the board and are charged with supporting the work of the board, not with representing any extra interests whatsoever. They may inform the thinking of those bodies, but they cannot directly advocate for or represent them.

Mr Brooks: I take that point. Mark said that it is not a knee-jerk reaction to what happened in the past. However, you cannot remove it from the context of what happened in the past either. I hope that what comes forward runs more smoothly. Thank you.

The Chairperson (Mr Mathison): There are no other indications. Unless there are other contributions from the Department or the GTC, I am happy to close the session. Thank you all for your time and for making yourselves available. It would be helpful to receive correspondence on the point about clauses 2 and 9. Thank you.

Mr Bailey: Thank you, Chair.