Stephen Farry
North Down · Alliance Party · Northern Ireland
“Speaking for a party that has a longer pedigree in advocating a public inquiry than both the DUP and Sinn Féin, I nonetheless welcome this announcement, despite the torturous path that we have had and, indeed, the missed opportunities.”
“The first was a reform of the petition of concern to take it back to the original intent when it was designed in 1998. It was clear at that stage that Arlene Foster banged the table and said, "No, never. We are not doing that. That is a way whereby we are going to have to fold on equal marriage: it's not happening".”
“<BR /> <BR />The main points that I make concern the substance of the order. There are probably three aspects that the Minister needs to address properly before the Assembly, and they really relate to what other options he has.”
“That raises the question of why they want to go as far as 2022, especially when I am not sure — I would welcome any clarification to the contrary on it — that there has been formal Executive approval of this.”
“<BR /> <BR />There are three major substantive issues that I do not believe have been properly aired on this: VAT; European Commission infraction proceedings; and, most important, the opportunity foregone to revisit the classification of Northern Ireland Water and the ability, through a separate water charge, to allow it to borrow commerc…”
“While my party was supportive of the Good Friday Agreement back in 1998, at that time, we expressed some reservations around the very detailed nature of the proposals and how those could, in due course, destabilise Northern Ireland and prevent us from realising our full potential. We have been very much vindicated in that analysis.”
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“<BR /> <BR />There has also been significant discussion of zero-hours contracts; Phil Flanagan, Claire Hanna and others referred to that. Let me be very clear about where I stand on the issue. It is an area where I wish to see action being taken. There is a strong case for proportionate regulation. Zero-hours contracts may work for some, but they clearly do not work for others, and there are risks around low pay or uncertainty over hours, irregular hours, the impact on family life and people's ability to access benefits etc. It is important that we consider what can be done in that regard. We are seeing an increase in the casualisation of the labour market. Opinion is divided on the benefits of that, particularly on zero-hours contracts and other forms of minimum-hours contracts.”
“In any event, any decisions relating to that, which are currently part of the parallel review of tribunal rules, will be by regulation. The final outcomes have not been determined. <BR /> <BR />More broadly, on the issue of deposits, the point has been made about decisions being made through negative resolution. It is the precedent that decision-making in relation to regulations around tribunals has been through negative resolution, up until now. It is possible for us to change that, but, before any decisions are taken in that regard, it is important that Members are fully aware of the context and the precedent that they will be making in changing that. No doubt, those are issues that the Committee may wish to reflect on further when they close out their deliberations over the coming weeks.”
“Indeed, I look forward to reading that. I am impressed by the Member's choice of reading matter. However, I think that the point stands: there is significant concern around the deployment of fees. While fees have certainly had an impact on the reduction in the volume of cases, the jury is still out, so to speak, on whether that has had a positive impact on justice — not that we have juries in the context of tribunals. <BR /> <BR />There was also comment around the use of deposits and the risk around multiple deposits. In principle, one of the things that we want to do is have a cap to ensure that there is protection. The last thing that we want to do around deposits is price people out of justice. Deposits are there as an effective tool for case management to impress on people the risks and counter risks of cases that they bring forward.”
“In a moment. <BR /> <BR />While the impact of fees in Great Britain may have been a significant reduction in the volume of cases, great concern has been expressed from a wide range of quarters about the impact on people's ability to have their employment rights protected in what is becoming a much more laissez-faire approach towards employment rights in Great Britain in comparison with the situation that we have in Northern Ireland under devolution. I give way to the Member.”
“<BR /> <BR />While I am open-minded on some of the missed opportunities that exist around the Bill and things that we could have done differently had there been more consensus, from my personal point of view, I am absolutely opposed to the introduction of fees for tribunals. That would essentially create a charge for access to justice.”
“It is worth putting it on record that the system of tribunals that we have in Northern Ireland, while far from perfect — indeed, people may express the frustrations that they hear from stakeholders about outcomes that may or may not have gone their way — is perhaps one of the very best in the world. <BR /> <BR />The Member who spoke previously referred to the situation in Great Britain and his view on the effect of the introduction of fees on the management of cases, but it is worth stressing that, particularly over the past decade, we have seen great strides in our system in the speed at which cases move through the system and the ability of our employment judges and panels to effectively manage the cases that come before them.”
“In addressing some of the particular comments that have been made, I want, first of all, to address the point about judges and the terminology around employment judges. That reflects existing practice. It is not designed to make the process around tribunals any more adversarial or like a court or make it less so; it is simply a reflection of the current practice, and it is, indeed, more gender-neutral terminology. It is also important that I give the assurance that we will see the panels; we are not talking about employment judges sitting alone. The balance that we currently have works well.”
“That is the reality that I and all my colleagues find, both in getting clearance from the Executive at a policy level to take issues forward and in ensuring that legislation carries a sufficient majority in the Assembly. It is important that we reflect and respect the processes that we have in the Assembly and in our political system.”
“Others talked about our inability to move on collective redundancies, and some mentioned unfair dismissal. While Members may agree that more could have gone into the legislation, there is no consensus on what the missed opportunities are. Indeed, there are polarised points of view on what they are. That reflects, to an extent, the political realities of where we find ourselves. Given the nature of the Government in Northern Ireland, in particular, it is important that we move on the basis of sufficient political consensus.”
“<BR />As many Members said, this is not about denying people their right to take a case to a tribunal; it is simply about making sure that they are fully exposed to different and, potentially, more efficient and effective ways of resolving their disputes than a way that can be more challenging. We accept that there will always be cases that are best addressed through a tribunal and that people, on some occasions, will prefer, and are entitled to have, their day in court, so to speak, though I should stress that we do not want to overemphasise that a tribunal is like a court experience. <BR /> <BR />It is important to bear in mind that, when Members talk about missed opportunities in the Bill, they are not always talking about the same aspects. Some Members talked today about zero-hours contracts.”
“It is important that companies, organisations and employers take on board the existing advice on best practice in their structures and human resources policies so that they can avoid a situation in which disputes arise and, flowing from that, the need for dispute resolution. Inevitably, disputes will arise, even when employers apply best practice. It is in that context that early intervention, following on from prevention, is pursued. That is why we are very keen to see as many disputes as possible addressed through various means of alternative dispute resolution. We already have the LRA single arbitration scheme, and we are trying to build conciliation by routing all claims through the LRA.”
“Having a much more efficient and effective system of employment relations, whereby we intervene at an earlier stage to prevent disputes escalating and the attendant costs, which some Members mentioned, being fully borne is, by far, the preferable approach. That is the main thrust of what the Bill is trying to achieve. Some of the measures may not be the most glamorous in the world, but they are intended to have real, practical implications on the ground and to make the process of addressing disputes much easier and much less stressful and difficult for all involved. <BR /> <BR />We want a hierarchy of interventions, and that starts with the prevention of disputes in the first place.”
“I have regrets about some of those measures, of course, but the Assembly may be in a position to return to them on a different occasion. The opportunity has not been lost, though a delay in addressing the issues has the consequence that the reforms are not introduced at a particular time. <BR /> <BR />The Bill is about creating in Northern Ireland an improved employment relations framework that is simultaneously good for employers and employees. It is important to stress that, as a number of Members mentioned, this is not about an ongoing tension between employers and employees. We accept that as a given. There are areas of reform that should be viewed as a win-win for both.”
“It is in that context that I want to stress my appreciation to the Committee for the manner in which it is addressing the issue. While I may have said earlier that the Committee was expediting the process, it is certainly not cutting corners. It is going through the process of giving proper scrutiny to all aspects, and my officials and I are more than happy to facilitate the Committee in that. <BR /> <BR />Significant work has gone into the process of getting to this stage today: the review conducted by the Department and engagement with stakeholders, including the Committee. The Bill stands on its own merits as good and coherent law. There are aspects on which we could have gone further by adding in other measures.”
“I thank all the Members who contributed to the debate this morning and this afternoon. In my winding-up speech, I will endeavour to respond to as many of the comments that were made as possible. <BR /> <BR />At the outset, I will comment on the process of how we have got here today, having the Second Stage in January 2016. Of course, that is far from ideal, and we wanted to have reached this stage much sooner in the mandate. There will be implications that flow from the delays that we have had that Members should be aware of. I will come to those in a few moments. I would have preferred it if the Executive had signed off on the Bill much sooner, but we are where we are, and we have moved the Bill forward as quickly as we could.”
“The purpose of the clause is to ensure that the vision set out in the new apprenticeship strategy, which articulates a clear economic and social imperative for providing apprenticeship opportunities to grow the local economy, is appropriately defined. <BR /> <BR />In conclusion, I look forward to listening to Members’ comments in the debate and I commend the Bill to the Assembly.”
“Clause 17 empowers the Department to make regulations concerning the continued delivery of a high-quality, impartial Careers Service by suitably qualified individuals. That was one of the key recommendations in the Employment and Learning Committee report, following its extensive inquiry into careers in 2013, and also featured in subsequent reports from employers’ representatives. The purpose of the clause is to ensure that everyone, irrespective of age or ability, has access to impartial careers advice to help them maximise their potential in a fast-changing and increasingly globalised workplace. <BR /> <BR />Clause 18 permits the Department to make regulations which, in effect, set out the components of and conditions under which apprenticeships will operate in Northern Ireland.”
“The intention is to maintain a focus on the primacy of public interest while creating a level of protection, through reduced compensation, where a protected disclosure has not been made in good faith. Clause 15 provides for employers to be vicariously liable if an employee suffers detriment from colleagues for having made a public interest disclosure. <BR /> <BR />Clause 14 will place a duty on regulators to report annually on the number of whistle-blowing concerns raised with them and whether they were investigated. The Bill also provides an opportunity to take legislative action to strengthen our approach to careers guidance and apprenticeships.”
“Clause 12 introduces a public interest test to close a loophole in public interest disclosure legislation that allowed an employee to make a protected disclosure about a past, current or putative breach of his or her contract of employment, even though such a disclosure may have nothing to do with the public interest. Clause 16 includes student nurses and student midwives in the scope of whistle-blowing protection. They have been inadvertently excluded until now. The same clause establishes a power to amend, by order, the definition of "worker" for the purposes of whistle-blowing. <BR /> <BR />Clause 13 changes the effect of the good faith requirement.”
“However, the present mechanism for agreeing such a significant change to employment law is lacking in that the change could be implemented prior to a debate in the Chamber. If a change to the qualifying period is contemplated by a future Minister, I would like to ensure that there is an opportunity for the House to debate and approve it beforehand. Clause 21 ensures that that will be the case. <BR /> <BR />Clauses 12 to 16 deal with public interest disclosure or whistle-blowing. The importance of people in organisations having the confidence to report wrongdoing is key to ensuring that negligent, improper or illegal practices in organisations are addressed.”
“<BR /> <BR />I noted the concerns raised by some Committee members on the issue. The reality is that when people go to a tribunal, they are going into a legal environment to get a legal decision. The term "employment judge" avoids potential confusion by making that clear. A majority of responses to the recent consultation on more efficient and effective tribunals accepted the change, and trade union representatives in their evidence to the Committee were more concerned about seeking an assurance that the tripartite constitution of tribunals was not changing. I am happy to give that assurance. <BR /> <BR />Turning to better regulation measures, my Department has not so far received substantive evidence that would justify a decision to increase the qualifying period for the right to claim unfair dismissal.”
“I have ruled out the introduction of fees to access the tribunal system; however, it is important for us to address the serious concerns of those who bear the cost of contesting weak claims and responses. I am conscious of the need to preserve access to the tribunal system, and I assure Members that impacts will be fully considered before I agree the final form of regulations. <BR /> <BR />Clauses 10 and 11 contain enabling powers allowing tribunal chairmen to be referred to as "employment judges". That already happens in the tribunals, and it is reasonable to bring the regulations into line with that practice. It is a change in terminology only; it does not signal any change in the tribunal process. Unlike "chairman", the term "employment judge" is gender-neutral and better reflects the legal nature of the proceedings.”
“<BR /> <BR />Clauses 5 and 9 give my Department broader scope to specify the circumstances in which tribunals can require parties to pay a deposit in order to proceed with a case that has little reasonable prospect of success. A requirement for a deposit is not the norm, but it is important for tribunals to have powers to ensure that parties unlikely to succeed in a case consider carefully whether it is appropriate to proceed. A party's ability to pay is considered when a deposit is set. <BR /> <BR />Concerns have been expressed about access to justice. However, it is necessary to acknowledge concerns consistently raised with my Department about the cost that can be faced by those who have to contest cases with little substance.”
“Clause 20 extends confidentiality protections to the full range of LRA dispute resolution services; such protections currently apply to the LRA's statutory conciliation and arbitration roles. The clause, by protecting services of the agency generally, provides certainty for employers and employees that they can discuss matters in a free and frank way to find a resolution that works for both. <BR /> <BR />As I noted, my Department has consulted on revised and updated rules and procedures for industrial tribunals and the Fair Employment Tribunal, and the Bill contains short clauses giving my Department the necessary flexibility when finalising regulations in response to that consultation.”
“I will consider whether there is a need to review the drafting of clauses 4 and 8 to provide necessary flexibility in developing the final model.”
“This will be a novel service that does not operate elsewhere in the UK or in the Republic of Ireland, and it is therefore vital that we get it right. I have reviewed the evidence presented to the Employment and Learning Committee in that respect, and I take on board the points made, particularly by the Labour Relations Agency and the Council of Employment Judges. I accept that more work needs to be done before finalising the delivery model. The specifics of the service will need to be developed, taking into account the findings of a forthcoming review of the LRA's statutory arbitration scheme and of the early neutral evaluation service that is already being piloted by the employment tribunals, which I understand has been very well received.”
“In addition, where two parties can agree a resolution between them rather than have a decision imposed, there is an increased sense of ownership and empowerment that can help repair or maintain the employment relationship. Avoiding a legal process can reduce the time spent on a dispute; associated stress, legal and opportunity costs; reputational risks; and uncertainty of outcomes. My intention here is to switch the focus from claim to resolution. <BR /> <BR />Clauses 4 and 8 are also focused on promoting earlier resolution. They facilitate an optional neutral assessment service, allowing parties to obtain an expert indication of the potential outcome of their dispute. This is to help them stop and think about whether proceeding with their case is the best option for them by helping them to see potential strengths and weaknesses.”
“I must stress that the absolute entitlement to bring a matter to a tribunal with or without prior conciliation having taken place will remain. The purpose of the clauses is to allow the LRA's conciliation offer to be placed front and centre so as to encourage resolution between employees and employers, where possible, without the need to proceed to an employment tribunal. Early resolution has clear benefits. Protracted disputes tend to damage or end employment relationships. Resolution before legal action starts is more likely to preserve those relationships and, in that respect, the assistance of a conciliation officer can be invaluable.”
“The input of all those stakeholders has helped shape the content of the Bill before us today, which I will now review in more detail. <BR /> <BR />Clauses 1, 2, 3, 6 and 7, together with the schedules, establish a framework for the new process of early conciliation to be delivered by the Labour Relations Agency. In effect, that will mean that, in most cases, a tribunal will not accept a claim unless the claimant can show that he or she has received an offer of conciliation from the LRA. Let me be very clear that the requirement is to show that conciliation has been offered, not to show that there has been engagement with conciliation. People will remain free to refuse conciliation or even to ignore the offer, although it will usually be in their best interests to consider it.”
“I am grateful, in particular, to the employment relations round-table forum, which brings together trade union and business representatives and is facilitated by the Labour Relations Agency (LRA). It helped to inform the development of key measures in the Bill. At this stage, I also want to put on record my thanks to the members of the Committee for Employment and Learning for their work on the review over the past number of years and, in particular, to express my gratitude to the Committee for the manner in which it is seeking to expedite the Committee Stage, not least given the pressing timescale that has arisen for various reasons with the end of this mandate looming. I look forward to engaging further with the Committee over the coming weeks.”
“Also on the issue of public interest disclosure, I have been mindful of recent changes made in Great Britain by the Small Business, Enterprise and Employment Act 2015, and therefore, following a short, targeted consultation, I have agreed to include in the Bill provision to place a duty on regulators to report annually on whistle-blowing issues in order to provide greater assurance to whistle-blowers that action is being taken on their disclosures by the responsible prescribed person, and also to extend whistle-blowing protection to include student nurses and student midwives, who have been inadvertently excluded from it. <BR /> <BR />I want to acknowledge the contribution of stakeholders throughout what has been a very extensive consultation process.”
“It is with regret that I have decided not to take forward legislation on the matter in the present Bill, as there is insufficient political consensus on the issue. There is a danger that the absence of change in that regard may ultimately undermine our competitive basis internationally, especially at a time when we are seeking to attract greater investment through the use of a lower rate of corporation tax. <BR /> <BR />The employment law consultation showed that there is widespread agreement with the view that the case law had created a legal loophole that permitted private contractual disclosures to be protected under public interest disclosure or whistle-blowing law. That was never the policy intention, and the Bill addresses that point.”
“It was also evident that the proposed system of protected conversations, which would allow such discussions, even where there was not an existing employment dispute, was viewed by many as controversial and likely to create unintended adverse consequences. <BR /> <BR />As I referred to, I found persuasive the arguments of those who considered that the 90-day consultation period for collective redundancies involving over 100 employees was unnecessarily lengthy. I was impressed by the arguments of the many consultees who made the point that it is the quality rather than the length of consultation that matters. I was also struck by the arguments against having three different collective redundancy periods — one in Great Britain, one in the Republic of Ireland and another in Northern Ireland.”
“The prospect exists at present of any particular Minister taking a decision that, ultimately, will not be confirmed by the Assembly but would, nevertheless, remain in place for a short time until the matter is brought to the Assembly, thereby creating confusion or, indeed, chaos in employment law. That is why we are moving towards the affirmative procedure for any decision that will be taken under secondary legislation by any future Minister in that regard. <BR /> <BR />It was also clear from the consultation responses that the current system allowing compromise agreements to be negotiated between an employer and an employee to end an employment relationship works well.”
“As for our internationally competitive position, the current situation around the qualifying period for collective redundancies of over 100 is probably a bigger issue for international investment but, again, that has not been changed in the Bill because, as the Member will be aware, there is not political consensus at this stage. The Assembly might want to return to that. <BR /> <BR />Arising from the point on unfair dismissal, I want to go on to stress that such changes to the qualifying period can be made through secondary legislation. The Bill makes a change in the current way that that could happen, as it is currently framed around confirmatory procedure and the Bill will change that to the use of affirmative procedure. That provides greater powers to the Assembly and increases the safeguards.”
“I thank the Member for his comments. I do not discourage Members from having that debate but, just to be clear, at this stage, we are not proposing any change to the qualifying period through this Bill. Those two things may have happened. There may be no link or no real detriment to investment through the current situation, but we do not have the evidential base to confirm that one way or another. Just because the two things happen at the same time does not mean that they are linked or that things could have been different.”
“In a moment. The matter remains live in the context that it is something that can be changed through secondary legislation. There are measures in the Bill that will tighten up the decision-making process around that, which I will refer to in a moment. So, if the balance of argument or political opinion changes, it is something that the Assembly or, more particularly, a future Minister, can return to with minimal obstacles to bringing something forward.”
“I thank the Member for his comments. The comments that he articulated have also been made by a number of the business organisations that have advocated for a change in the law. The evidential base, however, has not been established for a change at this point. I appreciate that there are competing interests around all of this, but the reality is that there is not consensus in the Executive or in this Chamber that would facilitate any change in the law —”
“While that is an issue that particularly polarised employer and employee interests, at this stage there is no evidential case, nor is there a sufficient political consensus, for an increase to the qualifying period. The period will therefore remain at one year.”
“While there are arguments about saving public money, the reality is that our tribunal service has substantially reduced its operating costs over recent years without the need for a fees mechanism. <BR /> <BR />The third theme of the employment law review, better regulation, encompassed questions on whether there should be changes to the following: the qualifying period associated with the right to claim unfair dismissal; consultation periods for collective redundancies; compromise agreements and protected conversations; and amendments to public interest disclosure or whistle-blowing law. Strong views for and against proposals were presented on a number of the better regulation issues, and none more so than on the unfair dismissal qualifying period.”
“<BR /> <BR />Under the second theme, efficient employment tribunals, I sought views through separate public consultation between July and September last year. That built on extensive positive work with the tribunal service to develop proposed new rules and procedures that can largely be implemented through regulations and practice change. The Bill does, however, contain some short enabling powers to support those developments. <BR /> <BR />There are those who believe that an opportunity has been missed to follow the example of Great Britain by introducing fees to access and proceed through our tribunal system. I have explicitly ruled that out. As a means of dealing with unmeritorious claims, fees are a blunt instrument.”
“Bearing that in mind, my Department’s subsequent public consultation sought views and asked for examples of evidence on a number of employment law proposals under three main themes: early resolution of workplace disputes; efficient and effective employment tribunals; and better regulation measures. There were 40 substantive responses to the consultation. <BR /> <BR />The first theme, early resolution, focused on optimising opportunities for the early resolution of employment disputes and reducing the incidence of protracted conflict. Those matters are understandably important to employers and employees, and the early conciliation and neutral assessment clauses in the Bill reflect the outcome of consultation in that area.”
“That approach brings the advantage of consistency, which has previously been recognised. Given the expectation from a range of stakeholders that those proposals would be considered from a local perspective, as well as my focus on developing solutions that are fit for purpose here, I sought views on what actions my Department should take on those matters. <BR /> <BR />It came as no surprise that employer representative organisations advocated a lighter touch to employment regulation on the basis that it would build business confidence and encourage employers to increase their workforce. Again unsurprisingly, the trade union movement believed that a number of the UK Government’s proposals were about weakening the existing framework of employment rights and that that would have an adverse effect on the economy.”
“<BR /> <BR />I know that some consider that the absence of specific measures in the Bill detracts from its impact. In some cases, that absence is down to the fact that there is simply not sufficient evidence for change, while in others, there has been insufficient political consensus at this stage to enable us to move forward. I assure Members that the measures that are in the Bill have a strong, rational basis for implementation. <BR /> <BR />It is important to set out the context from which the Bill has emerged. The previous Government in Great Britain consulted on and then legislated for a range of employment-related matters during their mandate. Historically, Northern Ireland has sought, in the main, to mirror Great Britain on employment law matters.”
“<BR /> <BR />The Bill, I believe, is a fair reflection of that approach. Its development has been informed primarily by my Department’s wide-ranging review of employment law, through which I have sought to identify measures to stimulate business confidence whilst maintaining the rights of individual employees. It has also been informed by positive engagement focused on enhancing the framework for careers development and apprenticeships, recognising the importance of investing in our most important resource — our people. <BR /> <BR />The Bill embraces the principle that employers and employees have common interests. What is good for business is good for employees, and vice versa. I do not regard reforms of employment relations, especially the measures within the Bill, as a zero-sum game, with a win for one being a loss for another.”
“I am pleased to bring this important Bill before the Assembly. It contains significant measures designed to strengthen our employment relations system through improving options for resolving employment disputes. It also supports careers development and apprenticeships in Northern Ireland. <BR /> <BR />Northern Ireland is the only region of the UK to which employment law is currently devolved. That provides us with the opportunity and responsibility to develop an employment relations framework that meets the specific needs of our region. While policy lessons can be and, indeed, often are learned from developments elsewhere — often there can be strong arguments for having a common framework for employment relations across the UK in some respects — we are not bound to follow a prescribed path.”
“Clearly, foundation degrees are very closely shaped by the needs of employers. Curriculum development is a key aspect of this strategy, and it will feed through to apprenticeships and things like foundation degrees.”
“We are seeing the different institutions delivering in the areas where they have the greatest degree of specialist knowledge, so, clearly, there is a role for universities and a role for further education colleges. <BR /> <BR />In particular, I am keen that we further develop the role of HE within the context of further education. I previously mentioned that, at present, around one fifth of all higher education qualifications are delivered through our further education colleges. I think that there is the potential for that to grow ever further. Where we are likely to see that growth is in the outworkings of apprenticeships, where we will see people on level 4 and level 5 progressing and doing a foundation degree either on a stand-alone basis or, potentially, as a formal part of their apprenticeship training.”
“I thank the Member for her questions and comments. Obviously, the design of the new Department for the Economy is not my direct responsibility, but I am certainly aware of how that work is proceeding. It will be important that there are good linkages between the two different directorates in the new Department for the Economy. When we talk about skills, higher education in universities does not sit in a bubble, separate from our other skills interventions in terms of what happens around apprenticeships, youth training or, indeed, further education. They have to be seen as part of a fully integrated system that is based on delivering the skills required for our economy.”
“So, investing in skills has to be viewed as an inescapable requirement if we are to make the corporation tax reduction a success. We have seen that there are particular skills pressures already; those will become only more acute over the coming years. Obviously, the pressures that we are seeing will be in areas where FE has the greatest comparative advantage. So, it is absolutely incumbent upon future Executives to ensure that we resource all our skills interventions, particularly those in further education.”