I proposed originally that we would delete the ex parte requirement because it seems wrong that a teacher could be struck off without even being informed of an application being made to the High Court. On Committee Stage the Minister said there would be difficulties with that. If the teacher concerned was abroad there might be difficulty in serving notice to the teacher and that would hold up proceedings. I do not accept that, because legal proceedings can be served on people at their last address and abroad if necessary. To compromise I am willing to remove that and leave it that the hearing would take place unnoticed.
Order of Business (Resumed). - Teaching Council Bill, 2000: Report Stage (Resumed) and Final Stage.
Debate resumed on amendment No. 34:
In page 31, line 27, to delete "ex parte".
–(Deputy Shortall).
I note the Deputy's concerns but believe this Bill provides ample protection for the teacher. Section 42 provides that the registered teacher be provided with a copy of the application for inquiry and be invited to make a submission in writing to the investigating committee. The decision of the investigating committee will be forwarded in writing to the registered teacher as well as any subsequent decision of the disciplinary committee. In this way the teacher will be fully informed and aware of the procedures that will be used by the Teaching Council, and in particular the disciplinary committee, in taking any action. It is not therefore necessary to once again serve notice on the teacher of its intentions. This would be in the context of a case where unfitness to teach had already been proven and there was a necessity to ensure that the teacher was no longer entitled to remain as a fully registered teacher. All of these procedures are designed to ensure that the matter is concluded as quickly as possible and the rights of all parties are protected throughout. Both the Nurses Act and the Medical Practitioners Act use this provision.
I accept that action should be taken as quickly as possible but there is the matter of due process. It is a basic right that if an application is being made to the High Court to strike off a teacher that teacher should at least be sent notice of it. It seems extraordinary that an application with such serious implications could be made without the knowledge of the person concerned.
There is in section 44(2) already a provision that the director shall, by notice in writing, within 21 days of the making of the decision provide a copy of the decision and the reasons to (a) the applicant, (b) the registered teacher and (c) where the registered teacher is employed as a teacher, his or her employer, and (d) the Minister. A registered teacher may, within 21 days of the date of service of a notice apply to the High Court for annulment of the decision and the court on hearing the application may annul, confirm or vary the decision.
Will they be notified of that?
Yes, they have to be notified.
Amendment, by leave, withdrawn.
I move amendment No. 35:
In page 31, to delete lines 33 to 37.
I would like to know why the Minister is seeking to limit the right of appeal to the Supreme Court. This probably sets a bad precedent. In a situation where there are major issues in relation to the facts in dispute why should the Supreme Court be precluded from reviewing it? Why would a teacher be precluded from that?
I support this amendment. It would appear to be blocking off a legitimate avenue of appeal that is available in most legal actions. I fail to comprehend the logic behind this section and I would like the Minister to elaborate on the rationale behind it.
The purpose of the section is to ensure that matters are brought to finality by a decision of the High Court. This is necessary to ensure the council does not become embroiled in lengthy court actions that would not change the material decision. Any appeals following the provisions of this section would only be allowed on a point of law and would not be a complete reinvestigation of the case.
What about where the facts are in dispute? As a constitutional right a teacher should be able to appeal to the Supreme Court in those circumstances. Not all cases are clear cut.
It is a similar provision to provisions in other Acts. Basically it is to have the High Court as the final arbiter. It will have gone through all the procedures and then do so again at the High Court. The High Court will be the final arbiter except on a point of law which could lead to an appeal.
It would appear that this would be the first judicial involvement. Any appeal against the decision of the council goes straight to the High Court so it is the first court involved in adjudicating on the issue. It is likely that the stakes will be extraordinarily high in terms of issues to be adjudicated on where someone feels strongly enough to take it to the High Court. If there is a dispute in terms of the facts rather than points of law we should not deny access to the courts. It is a fundamental cornerstone of our democracy that everybody has equal access to the law and stands equal before the law. It is unworthy of the legislation, which is welcome and well constructed in general, that we should seek to stymie any aggrieved party's access to the courts.
Basically it is a question that the whole system is one of self regulation with the appeals within the system and the external appeal is to the High Court. That is as it is with the medical council and the nurses council.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
As amendment No. 37 is an alternative to amendment No. 36, they may be discussed together.
I move amendment No. 36:
In page 34, line 7, after "with" to insert "the recognised teacher unions,".
I am suggesting that after the phrase, "The Minister may by regulation, from time to time, as he or she considers necessary or appropriate, following consultation", we insert the words, "with the recognised teacher unions", to ensure there would be fair procedures and the normal industrial relations machinery would come into play at certain points. The Bill does not make such provision and would be improved if the amendment was included.
We have argued the point about consultation since the outset and repeatedly and regrettably the Minister has refused to take it on board, notwithstanding the fact that partnership in education between the Department and its employees, teachers and students and parents and teachers is essential. Trade unions representing teachers are critical players in education and for the Minister to again turn his back on the principle of consultation is regrettable. Such provision is more important in this than in previous sections as there is a backdoor provision for the assignment of additional functions to the Teaching Council. This could be a Pandora's box. I would hate to see it being used as an underhand way of imposing additional functions which have not been agreed with the wide range of parties consulted in the gestation of the Bill. We spoke about the need for consultation in other sections, but it is absolutely essential here. The Minister may well say that the teacher unions have X number of members on the council, but I remind him that he said that once they become members of the council they are not expected to solely wear their teacher's hat, but are obliged to have a broader view on matters before the council. For that reason the partners, in particular the teacher unions which represent all employees, should be consulted about any additional functions to be assigned to the Teaching Council. I urge the Minister to, at least, consult the teacher unions, even if he does not agree with them.
I echo in part what Deputy Creed said, namely, that the trade unions nominate members of the council. We must remember, however, that the council exists to represent the professional side and will be solely concerned with the qualitative and professional aspects of education, while negotiating on conditions of service, salaries and pensions will continue to be a major concern of the teacher unions. I do not see the reason, therefore, it would be necessary, in this instance, to consult them. The Minister is entitled to confer on the council any additional functions or modify existing functions of the council as he sees fit. As Minister, I have a responsibility to ensure the working of the council continues to develop.
The section makes provision for the Minister to consult the council prior to making any changes to its functions and its views will be addressed at that point. The teacher unions have representation on the council, not to act as members of the trade union on the board of the council but rather as wider representatives of the teaching profession who through their experience and expertise will enrich the council. I cannot, therefore, accept the amendments.
We teased this issue out on a number of occasions. As matters stand, the Minister would not consider introducing any changes which would have an impact on the conditions of teachers without consulting the teacher unions. There is a reasonably well established partnership between the Department of Education and Science and the teacher unions. The establishment of the council complicates that relationship to some extent. Many issues concerning conditions of employment and professional matters will come within the remit of the council which will have industrial relations implications. One cannot, therefore, isolate matters into professional issues and say that they are ones for the council or industrial relations issues and say that they are ones for the teacher unions. There is a degree of overlap in most issues.
The intention of the amendment is that the Minister should, on the basis of good practice and courtesy, consult the teacher unions on any changes to the functions of the council. The danger with which we are all concerned is that the council might be used as a way of short circuiting the normal consultation procedures between the Department and the teacher unions. That is the reason we want to specify in the Bill that consulting the council does not remove the responsibility of the Minister to consult with the teacher unions. It is important that we are clear about the new relationships which will develop as soon as the Teaching Council has been established. There has been good consultation in the establishment of the council, but once it is up and running it is important that we maintain consultation with the teacher unions, which is a fair and reasonable proposal.
Neither the Minister nor his predecessor needs to be reminded of the long gestation of the Bill and the broad consultation which took place in framing it. There is, however, a backdoor mechanism here for the Minister to foist additional responsibilities on the council. There is provision for consultation with the council any other Minister, but not with the trade unions in considering additional functions for the council. We are not saying that agreement has to be reached with the trade unions, but that they should be consulted. It is a matter of common courtesy as much as anything else, and it is particularly important in this section as we are talking about unforeseen additional functions which the council may be asked to take on board. It would be wise for the Minister to agree to consult prior to requesting the council to take on board additional functions.
The report of the steering committee deals extensively with this matter and makes the point that the Teaching Council will solely be concerned with the qualitative and professional matters within its remit, whereas negotiating on conditions of service, salaries and pensions will continue to be a major concern for teacher unions. The Education Act places an onus on the Minister, where practicable, to consult them. There can be issues, however, on which it would not be prudent to consult them, and the section is framed to cover such circumstances. There is plenty of provision otherwise for consulting the unions.
As it is now 11.30 a.m., I am required to put the following question in accordance with an order of the Dáil of this day: "That Fourth Stage is hereby—
On a point of order, Cheann Comhairle. I thought we were allowed 30 minutes.
It is 30 minutes or 11.30 a.m., whichever is sooner. I am required to put the following question in accordance with an order of the Dáil of this day: "That Fourth Stage is hereby completed and the Bill is hereby passed."
Question put and agreed to.