Around the UK: Northern Ireland

When does guidance become obligatory? A vague instruction from the Department of Education in Northern Ireland could land some schools in court over selection, says Jim McBain.

While England and Wales await a definitive definition of 'rarely cover', Northern Ireland awaits a definition of 'have regard'. These two words are at the heart of guidance issued in an effort to settle the long-running debate over the future of academic selection.

The mandate that Caitriona Ruane, the education minister, is laying down excludes the use of academic selection, which currently remains on the statute books. To become law, it must be approved by the Northern Ireland Assembly - which has not happened. Nevertheless the Department of Education states that schools will be required to have regard for the minister's guidance.

This poses a tricky question for the grammar schools from which ASCL Northern Ireland (ASCLNI) recruits 80 per cent of its members. Does 'have regard' place Catriona Ruane in the category of she who must be obeyed? Or are schools within their rights to disregard the Department of Education's guidance?

Education correspondents in the local press reported categorically that the guidance is not compulsory and that many grammar schools will set entrance exams. This will create problems down the line for appeals panels, which will have to decide if schools which did not have regard for the guidance were acting lawfully. It is widely anticipated that the matter will finish up in the courts.

The word in use to describe the current situation is 'deregulation'. Prior to 2009 admissions to grammar schools were regulated by the transfer test. Much publicity attended the fact that this year was the last year of the test. In its absence grammar schools have pondered how to fill the void.

At the time of writing, pupils applying to more than one grammar school may have to take more than one test. Parents and teachers of pupils approaching the age of transfer are not happy and are not wasting words in letting grammar school heads know their feelings about the current state of confusion.

Following the statement in 2004 by then Minister of Education, Martin McGuinness, that selection would end in 2009, heads of selective schools formed a pressure group to resist any change in the law which would threaten grammar school education in the province.

Calling itself the Association for Quality Education (AQE) the group attracted support from many members of ASCLNI. This separation of interests was accepted - ASCLNI had to remain neutral on the issue of selection in fairness to those members who work in secondary (non-selective) schools.

In terms of its own development, ASCLNI is close to the point where it can claim that the majority of children in post-primary education are in schools where at least one member of the leadership team is in ASCLNI.

This would leave the association well placed to engage with the Department of Education and other regulatory bodies about all the other issues which impinge on school leadership. However, in order to grow, the association needs to recruit school leaders from all sectors of secondary education.

In this matter ASCLNI is looking to England where certain local authorities have in place regulations which accommodate the existence of selective grammar schools.

The problem in Northern Ireland is entirely of the minister's making. She has set aside the fact that 64 per cent of parents and 62 per cent of teachers consulted by the Department of Education voted to retain selection and that the majority of Northern Ireland's MLAs (Members of the Legislative Assembly) are reported to be like-minded.

Failure to enact legislation to address the issue has resulted in the guidance to which all must now 'have regard'. This guidance is now the subject of a period of consultation, meaning that the final chapter on this saga has yet to be written.

Jim McBain is the regional officer for ASCL Northern Ireland.